Law and regulation of force majeure in Slovenia

Several provisions of the Slovenian Obligations Code (“OZ”) use the term “force majeure”. This is mostly in connection with liability for damages and reasons for withdrawal. However, none of the provisions explicitly define the term. Please see below for provisions referencing force majeure. 

• General provisions on compensation for damages (Article 166 OZ):
  • If movable property which was taken in an illicit manner from its holder was destroyed by force majeure, the responsible person is obliged to give him financial compensation. 
• Lease Agreement (Article 617 OZ):
  • A lease agreement is terminated by law if the leased thing is destroyed by force majeure.
• Agreement on Carriage of Freight (Article 681 OZ):
  • Generally, provisions in agreements on the carriage of freight stipulate that: if the transport was interrupted for a reason for which none of the parties concerned was liable, the carrier has the right to the difference between the agreed payment for the transport and the transport costs from the place where the transport was interrupted to the place of destination. However, in cases where the shipment was destroyed because of force majeure, the carrier is not entitled to any part of the payment. 
  • The carrier is liable for any loss or damage to the shipment from the time it is received until delivery, unless it is the result of […] external causes that could not have been anticipated and could not have been avoided or prevented. (Article 689 OZ)
• Freight Forwarding Agreement (Article 857 OZ):
  •  If a freight forwarding agent deviates from the instructions received, he is also liable for damage caused by force majeure, unless he proves that the damage would have occurred even if the instructions provided had been adhered to. 
• Agreement on Organized Travel (Article 901 OZ):
  •  A travel organizer is entitled to reimbursement of his costs alone if the traveller withdrew from the agreement due to circumstances that could not be avoided or prevented and that would have been justifiable grounds for the agreement not to have been concluded had they been in place when the agreement was concluded, and also if the traveller has supplied an appropriate substitute or if the travel organiser found a substitute. 
  • The travel organizer may wholly or partly withdraw from the contract without being obliged to reimburse for damage if before or during the performance of the contract there arose extraordinary circumstances that could not have been anticipated, avoided or averted and that would have been justifiable grounds for the travel organizer not to have concluded the contract had they been in place when the contract was concluded. (Article 902 OZ)
  • Changes in the travel itinerary are only permitted if caused by extraordinary circumstances that could not have been anticipated, avoided or prevented by the travel organiser. (Article 903 OZ)

The provision on exculpatory causes of (non-business) objective liability for damages (liability for damage occurring in connection with a dangerous object or dangerous activities) does not use the term “force majeure”, but rather offers a definition: “The proprietor shall be free from liability if he proves that the damage originates from any cause which was beyond the realm of things and could not have been anticipated, avoided or prevented.”

Within the meaning of this definition, a definition of force majeure was developed by legal theory and case law as a natural (i.e. external) event. As such, it is used as an exculpatory cause for non-business and business liability for damages and predominantly consists of three elements:

1. An external event (independent from a party);
2. The effect could not have been anticipated; and 
3. The consequences could not have been avoided or prevented. 

Slovenian courts interpret force majeure rather strictly when assessing the anticipation of the event, especially with regard to the due diligence of the party. 

As part of the anti-corona legislative package designed to stem the epidemic and mitigate its consequences, the Slovenian legislator on 2 April 2020 adopted “Intervention Measures to mitigate the effects of the SARS-CoV-2 (COVID-19) infectious disease epidemic on citizens and the economy Act”, which explicitly states that the term “force majeure”, when used within this Act, means the COVID-19 epidemic. The subsequently adopted acts on mitigation of the effects of COVID-19 also refer to the definition of force majeure in the Act. This first official designation of COVID-19 as a force majeure is likely to have a direct impact on the judicial interpretation of force majeure provisions in the Slovenian Obligations Code. 

Force majeure is a natural (i.e. external) event that could not have been anticipated, avoided or prevented.

In general, contracting parties are free to agree on a clause regarding force majeure (statutory provisions on force majeure are part of the dispositive law).

The parties are free to regulate such clauses, provided general rules of obligations law are complied with. This includes the principles of conscientiousness and fairness.  

N/A

The principles of conscientiousness and fairness apply to consumers as well as businesses. However, in the case of consumers, the Slovenian Consumer Protection Act (ZVPot) applies, which provides that general terms and conditions should be clear and understandable. Unclear provisions should be interpreted for the benefit of the consumer and unfair terms for consumers are deemed null and void.

No. General terms and conditions set by one contracting party, whether contained in a contract form or referred to in the contract, supplement the specific arrangements between the parties in the same contract and are as a rule equally binding.

No. It is recommended that force majeure clauses are drafted on a case–by-case basis, considering the particularities of the specific type of agreement in question. 

Generally, it is recommended that the parties both list the specific events and circumstances considered to be force majeure events, and provide for a general clause covering all similar but unspecified cases. The parties should also provide for an obligation to notify in the event of force majeure (specifying to whom and at what time the event should be notified and the degree of accuracy with which the event must be described).

N/A

In addition to the legislation on force majeure described above, the Slovenian Obligations Code includes a number of provisions that either excuse or regulate a party’s non-performance:

• Termination of an agreement due to non-performance (Articles 103-105 OZ)
  •  If, in a bilateral agreement, a party fails to fulfil its obligations (and the agreement does not stipulate otherwise), the other party may demand the fulfilment of the obligations or, under the conditions set out in OZ, withdraw from the agreement when the agreement is not already terminated automatically, and has, in any case, the right to compensation.
  • If the fulfilment of obligation within a specified period is an essential component of the agreement and the debtor fails to meet the deadline, the agreement is terminated automatically. However, the creditor may ensure that the agreement stay in force if he notifies the debtor. If the creditor has requested the fulfilment of the agreement but has not received it within a reasonable time, the creditor may withdraw from it. 
  • If the performance of the obligation within the specified period is not an essential component of the agreement, the debtor retains the right to fulfil his obligation even after the period expires. If the creditor wishes to withdraw from the agreement due to the deadline not being met, he must allow the debtor a suitable additional period for performance. If the debtor fails to perform the obligation within the additional period, the same consequences as if the period was an essential component of the agreement will arise.
• Termination or amendment of the agreement due to the changed circumstances (Articles 112-115 OZ) (Rebus sic stantibus)
  • Articles 112 to 115 of OZ set out conditions for termination of an agreement if the circumstances have significantly changed. If, after entering into agreement, circumstances have occurred that (i) make the performance of obligations by one party more difficult or (ii) due to such circumstances the purpose of the agreement cannot be achieved and, in cases (i) and (ii) the circumstances are present to such an extent that the agreement clearly no longer corresponds to the expectations of the parties, such that (as a matter of general opinion) keeping the agreement as it is would be deemed unfair, a party whose performance of the obligation is more difficult or a party who cannot realize the purpose of the agreement, can claim termination of the agreement before the court. 
• Impossibility of fulfilment for which none of the parties are held liable (Article 116 OZ) 
  • Article 116 of OZ, provides that if the performance of obligation becomes impossible for one party due to an event for which neither party is held responsible, the obligation of the other party should also cease to exist. 
  • If the performance is partially impossible, due to an event for which neither party is held responsible, the other party may withdraw from the agreement if the partial performance does not satisfy such party’s needs; otherwise the agreement should remain in force and the other party should have the right to demand the proportionate reduction of its obligations.
• Performance of obligations and consequences of non-performance (Article 239 OZ)
  • Article 239 of OZ on performance of obligations and consequences of non-performance provides that the debtor should also be liable for the partial or full inability to perform its obligations, even if it is not held liable for the inability, if the inability occurred after a delay for which the debtor was responsible. 
  • However, the debtor should not be held liable for damages if the debtor proves that the item that was the subject of the obligation would have been destroyed accidentally even if the debtor had performed the obligation on time.
• Release of debtor’s liability (Article 240 OZ)
  • Article 240 of OZ provides that the debtor should not be held liable for damage if the debtor proves that the debtor (i) was unable to perform the obligation, or (ii) was in delay due to circumstances arising after the agreement was concluded which could not have been prevented, eliminated or avoided.