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"Anti-virus" contractual strategy: is there an alternative to references to force majeure, the inability to fulfill obligations and a significant change in circumstances?" — article by Tatiana Tereshchenko and Alexander Sergeev

The pandemic and the unprecedented scale of public quarantine measures are a serious test for all participants in civil trafficking.

At present, there is a process of accumulation of questions and primary answers, which the doctrine and practice have yet to generalize, develop and rethink, based on previous experience and assessing the specific circumstances of each case.

In particular, the professional community is actively discussing the issue of possible recognition COVID-19, public of restrictive measures, the regime of isolation to force majeure (paragraph 3 of article 401 of the Russian Federation Civil Сode; hereinafter — CC[1]), a substantial change of circumstances (article 451 of the CC), the grounds for termination of obligations in connection with the actual or legal impossibility of performance (article 416, 417 of the CC).

The Presidium of the Supreme Court of the Russian Federation (further — SC) to ensure uniform enforcement on April 21, 2020 approved the Review of individual issues of judicial practice related to the application of laws and measures for counter-spreading of a new coronavirus infection (COVID-19) in the Russian Federation, № 1[2] (hereinafter, the Review). The position of the SC, reflected in the Review, is far from perfect and is rightly criticized by experts[3]. Without going into the discussion and generally agreeing with the criticism, we note that the purpose of this article is to analyze and interpret the explanations contained in the Review on relevant issues in a constructive way (as far as possible), given the forced haste of its adoption.

In our opinion, the essence of the position of the SC, including on the issues raised above, is that everything is possible, but the approach should be individual. In other words, it is necessary to evaluate the specific circumstances of the case, pay attention to the integrity of the parties, establish the presence of a legally significant cause-and-effect relationship, and make sure that all other conditions for the fair application of a particular norm of civil law are met. This position is nothing extraordinary from the court proceedings does not require and is consistent with the accumulated practical application of valuation concepts, unless, of course, to distract from some formal legal contentious provisions of the Review (for example, corresponds to the literal text of paragraph 3 of article 401 of the CC stating that "if the lack of the necessary funds caused by a set of restrictive measures... then it can be recognized as the basis for exemption from liability for non-performance or improper performance of obligations under article 401 of the CC" (answer to question 7 of the Review). - Ed.).

In other words, there are a lot of questions, and they will change depending on the specific case. The important thing is that there can't be one generic solution for everyone.

However, it would be shortsighted to concentrate only on the so-called negative scenarios (application of responsibility, forced termination, etc.). It does not matter who you are — a landlord or tenant, contractor, interested in the recovery of damages for breach of contract, or anyone who wants to seek suspension, modification, termination of the contract or save it. A number of principles and important provisions of contract law can both strengthen and significantly weaken the legal position.

It is difficult to overestimate the importance of choosing an effective strategy for protecting your interests, analyzing the prospects and economic feasibility of a pre-trial settlement against a court dispute, since this determines the building of a model of interaction with contractors.

The following is a kind of memo that allows you to focus on the practically important aspects of any contractual relationship that you want to maintain or meaningfully terminate. Of course, the following arguments do not claim to be complete and are not exhaustive. Examples of judicial practice are provided as an illustration and for the convenience of forecasting and minimizing legal risks.

1 In this article, the terms "force majeure "and" force majeure " are used as synonyms.

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3 See, for example:

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