Insights

By Anissa BOUSSOFARA

In the current context of the COVID-19 pandemic resulting in a battery of political decisions and social organization measures issued for the prevention and limitation of the spread of the virus (limitation of working hours, closure of borders, travel restrictions, etc. …), many contracts in various sectors, particularly in tourism or international trade, are likely not to be honored.

Can we consider that the contractors found themselves faced with a case of force majeure exempting them from all liability?

Tunisian legislation : Traditionally, force majeure requires three conditions to be characterized: unpredictability, irresistibility and exteriority.

Article 283 of the Code of Obligations and Contracts provides that:

«Force majeure is any fact that man cannot prevent, such as natural phenomena (floods, droughts, storms, fires, locusts), enemy invasion, the act of the prince, and which makes the execution of the force impossible. ‘obligation.
A cause that could be avoided is not considered as force majeure, if the debtor does not justify that he has used all diligence to protect himself against it.
The cause which was caused by a previous fault of the debtor is also not considered as force majeure. »

The list of events provided in the legal provision is not exhaustive and the events appearing there are not systematically accepted by the judge as falling under force majeure.

Indeed, the particular circumstances surrounding the event in question and the execution of the contract will necessarily be taken into account.

For there to be force majeure exonerating liability, it is necessary in particular that the debtor has sought adequate information from the competent institutions, that he has used all the means recommended to protect himself and that he has demonstrated all due diligence. precaution, caution and vigilance necessary for this purpose.

Furthermore, when a party invokes force majeure, it must demonstrate that there was no reasonable alternative arrangement that would have allowed it to perform the contract. The courts often require the party invoking force majeure to prove that it has taken all measures to fulfill its obligations, before relying on the force majeure argument. The courts require proof that the impediment could not be avoided and that alternative options were considered but could not be achieved. It will also be necessary to prove the direct causal link between the event invoked and the impossibility of performing the contract…