In the Romanian Civil Code, force majeure is defined as “any external, unforeseeable, absolutely invincible, and inevitable event.” It represents a clause for exempting civil liability, constituting an exception to the principle of the binding force of contracts between parties. Normally, parties are obligated to fully perform their assumed duties; however, in the occurrence of a force majeure event, they are exempted from their assumed obligations.

The primary effect is to relieve the debtor of the obligation to pay damages, such as interest or late penalties, which cease to accrue from the notification of the disruptive event. Additionally, in the case of delayed performance of the obligation, the debtor is entitled to an additional timeframe for fulfilment. If we are dealing with a total and definitive impossibility to perform the assumed obligations, the effect is the termination of the contract without penalties.

The Civil Code does not provide specific examples of force majeure cases; these can be determined by the parties through the inclusion of comprehensive clauses in contracts.

The method of confirming the occurrence of a force majeure event can be approached contractually in various ways, and this is the subject we aim to analyze in this article.

Parties may choose the simpler route of considering a simple notification of the occurrence of an event deemed by the notifying party to be force majeure as sufficient. This notification is transmitted to the other party within a short period, thus requesting the suspension of obligations between the parties. Alternatively, they may opt for the more complex path of involving the Chamber of Commerce and Industry of Romania in confirming the existence of a force majeure case.

There are advantages and disadvantages in both options, making it crucial to determine how the occurrence of a force majeure event will be established in specific cases.

In contracts of low value or with short terms, a simple notification is preferable, as it involves no costs, duration, or institutional approval procedures for force majeure cases.

For high-value contracts, of particular importance, those with long durations, or when the execution period is essential to the contract, securing the performance of obligations more thoroughly is preferable, potentially regardless of the occurrence of a force majeure event. In such cases, it is preferable not to let an event be categorised/interpreted by parties as a force majeure case but to request institutional approval based on evidence.

The assurance provided by approval from the Chamber of Commerce and Industry of Romania adds a level of calm to the shaken relationship between parties and maintains unblemished trust between co-contracting parties, regardless of the circumstances of their relationship and the events it undergoes.

The inconveniences of institutional approval for the occurrence of a force majeure event include:

• the procedure to be followed
• duration
• costs

The request must include a detailed presentation of the event, its consequences in the contractual relationship, and legal arguments that the invoked event constitutes force majeure.

The force majeure case certificate is issued based on the supporting documents submitted exclusively by the applicant. The file must include at least:

• the request for the certificate, signed by the legal representative; 
• a copy of the affected contract containing the force majeure clause; 
• certifications from relevant authorities, institutions, and bodies (other than the Chamber of Commerce and Industry of Romania) regarding the existence and effects of the invoked event, its location, and the moment it began and ended; 
• notifications addressed to the contractual partner regarding the occurrence of the invoked event and its effects on the performance of contractual operations.

Documents are submitted in original or certified copies by the applicant. The applicant assumes full responsibility, including legal responsibility, for the accuracy of the data and documents presented with the request for approval of the force majeure event addressed to the Chamber of Commerce and Industry of Romania.

The fee for approving the occurrence of a force majeure event per contract is €500 + VAT.

One drawback is that there is no approval for the occurrence of a GENERAL force majeure case; each contract requires a distinct procedure and is subject to a distinct fee.

The approval can then be presented to the creditor co-contractor, who may consider it, stopping the accrual of penalties/suspending the effects of the contract, or may choose not to consider it, making the approval only evidence in the court file between the parties.

We recommend rigor and attention in finding the most profitable way to establish the occurrence of a force majeure event on a case-by-case basis.

Author: Atty. Lavinia Rusu