Judicial act: Resolution of the Sixth Arbitration Court of Appeal dated September 22, 2015 in case No. А04-3186/2015
Court's findings:
1. The documents submitted by the defendant (invoices, letters asking the plaintiff to adjust the delivery time, information about the replacement of components) cannot be accepted as proper and admissible evidence of the presence of force majeure circumstances, since they only indicate the difficulty of the supplier in acquiring the appropriate parts to be replaced in the delivered goods, which is within the business risk.
2. The legal qualification of a circumstance as force majeure is possible only with the simultaneous presence of a combination of its essential characteristics: emergency and inevitability.
3. Extraordinary is understood as exclusivity, going beyond the “normal”, ordinary, extraordinary for certain living conditions, which does not relate to life risk and cannot be taken into account under any circumstances.
4. The extraordinary nature of force majeure does not allow the qualification as such of any fact of life, its difference from the case is that it is based on objective, and not subjective inevitability.
5. The defendant did not provide evidence that it was precisely the circumstances mentioned that served as an objective obstacle to fulfilling obligations under the supply contract on time, taking into account the fact that the delivery time had already been extended by agreement of the parties.
Comment:
1. The requirements of the supplier in the case under consideration were left unsatisfied due to the lack of evidence on his part confirming the impossibility of fulfilling obligations under the contract.
2. It should be borne in mind that the appropriate documents confirming the existence of force majeure circumstances may be notification of the counterparty about the occurrence of force majeure with the simultaneous provision of supporting documents from the competent authority (for example, an act of an authority on the introduction of a state of emergency, an act of the Ministry of Emergency Situations on a fire).
3. In the absence of the possibility of proving force majeure circumstances under Art. 401 of the Civil Code of the Russian Federation, it is possible for the court to take into account the circumstances committed by the counterparty in terms of preventing the consequences from the occurrence of force majeure circumstances, therefore, in this case, it is worth filing a petition to reduce the amount of the penalty under Art. 333 of the Civil Code of the Russian Federation.
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