新型冠状病毒对很多生意和个人都造成了很大的影响。很多客户联系我,表示他们或许有违约的情况,或者想要改变一些履行合约的方式。你或者你的公司签订的合约是否还能履行?

COVID-19 has no doubt impacted on the way businesses and people work. I have received numerous enquiries from clients regarding situations where there is a potential breach of contract, or that they wish to change the manner the contractual obligations are performed. Is your contract still in place?

合约落空原则  Frustration of contract

 合约落空原则是指签订合约之后,并非由于当事人的举动造成了合约的目的遭受挫折,失去合约原有的基础。合约落空原则使当事人免除未能履行的合同义务和法律责任。试想:如果提前知道这件事情的发生,是否还会签订合约?

The doctrine of frustration may come into play where subsequent to entering into the contract, the contract is unable to be performed due to an unforeseen event or set of events that is not the fault of either party, which results in the contract being radically different from what was initially contemplated by the parties. Ask yourself – if you knew of the event beforehand, would you have entered into the contract?

如果合约落空,双方将免除法律义务与责任。注意合约并不是从一开始就终止,而是从合约落空那一刻终止。

The result of a frustrated contract is termination. Instead of termination from the beginning, parties are discharged from future obligations under the contract.

以下为可能造成合约落空的案例:

Examples of situations where a contract may be frustrated:

  1. 场地出租合同,因政府限制而无法履行

Hiring out event venues for gatherings and celebrations which are no longer allowed to go ahead, due to restrictions imposed by the Government.

  1. 供货协议,因疫情或者政府限制造成生意需求改变

Supply agreements where the business needs are affected by the pandemic or restrictions imposed by the Government.

  1. 短期的商业租赁或者商场租赁

Certain short term commercial or retail leases.

 合约条款  Terms of the agreement

你必须找律师来审核合约里是否存在一些关于终止协议或者暂停义务的条款。其中有一个叫做 “不可抗力条款”的常见条款可能使用于当下的情况。

You should engage a lawyer to review the terms of the agreement. The agreement may contain clauses which provide for suspension of a party’s obligations or termination of the agreement in specific scenarios. One common clause is a “Force Majeure” clause.

“不可抗力条款”是一种免责条款。这项条款适用于非当事人所能控制,避免或者预见的客观事件,而导致合约义务无法履行的情况。这项条款最常用于天灾,战争和不可预见的政府行为。在这个情况下,根据个别条款的起草,遭受不可抗力的一方可能可以暂时性,或者永久性,免除履行合同的义务。

A Force Majeure clause may work to excuse a party from part or all of its obligations under the contract. This clause usually applies when there is an event or an “Act of God” that is unforeseeable at the time of entering into the contract, not caused by a party, uncontrollable and inevitable, which results in a party unable to fulfil its obligations under the contract. This clause is commonly used at times of natural disasters, wars or unforeseen government actions or decisions. Depending on the drafting of the clause, if the Force Majeure clause applies, a party’s non-performance may be excused, and its obligations may be suspended.

贴士  Tips

如果你认为以上的情况或许适用于你的情况,请尽力减轻违约或者不能履行合约可能对对方产生的后果,并且立刻咨询律师。请不要在咨询律师之前,跟对方表明合约终止。如果合约错误终止,对方或许可以因为你的错误终止的举动而选择终止合约,并向你索取赔偿。

If you think the above may apply to you, please do your best to mitigate the consequence of non-performance of your obligations under the contract, and seek legal advice immediately. Do not seek to terminate your contract before obtaining legal advice, as wrongful termination could give rights to the other party to terminate the contract and seek damages against you.

这篇文章仅仅是为大家普及一些基本的法律常识。并不适用于你个个人情况。如果想咨询更多,请联络我。

This article aims to provide you with very general legal information and cannot constitute legal advice to any tailored circumstance. If you wish to know more, please do not hesitate to contact me.

About the Author

Catherine Tan

Lawyer
A commercial litigation and insolvency lawyer, Catherine fights passionately for the interests of her clients with care and dedication.

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