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To what extent is the Covid-19 pandemic considered a “force majeure” excuse in contractual relations.

Under the Slovak Commercial Code, force majeure, or superior force, is a circumstance excluding liability for damages, i.e., it shouldn’t be viewed as a preventive measure, but rather as the grounds for liberation invoked when a party breaches its contractual obligation.

Since it is a non-mandatory provision and parties may rule it out in their contract, the contract must be read first. If the contract contains no such provisions, the parties may refer to the provisions of the Commercial Code.

The Commercial Code lays down the grounds for liberation based on which (if evidenced) the obligor may be relieved from liability for damage. The circumstances excluding liability include the impediments occurring beyond the control of the obligor which prevent the obligor from discharging his contractual obligations unless it is reasonable to assume that the obligor can prevent or overcome such impediments or their consequences or that the obligor could have foreseen such impediments at the time of assuming the obligation.

Coronavirus and the related measures that restrict or impede the ability of companies to fulfil their obligations can be classified as circumstances occurring independently of the will of the entity (company) which is in breach of its obligations. At the same time, a company cannot be reasonable expected to prevent or overcome such circumstances or expected that it could or should have foreseen them at the time when it assumed the contractual obligation. However, it is for the breaching party to prove the existence of the specific circumstances which objectively prevented it from discharging its obligations. Thus, the burden of proof is with the breaching party.