As the environment unravels the novel coronavirus, it has claimed an incredible number of people’s lives, jobs, and freedom, and has forced economies to come quickly to an astounding halt. Although most industries have been struck hard by this pandemic, the textile industry of Bangladesh can be said to possess witnessed the hardest blow. The sector has lost vast amounts of dollars due to delays or cancellations of orders. On the other hand, the worst part can be that, a clause that was in the beginning created to protect contracting get-togethers is now being misused, typically by clients, as a deadly weapon in order to avoid liability.
Essentially, centuries ago when the first contract was made, the virtually all imperative aspect that the parties relied over was trust -- a trust that the parties will fulfill their obligations, come what may. But mainly because the culture progressed, this trust was codified into a file and several clauses had been invoked to protect all the parties involved. One particular clause is “drive majeure,” a concept that is somewhat corroborated in Bangladeshi laws under s.56 of The Contract Act 1872.
Professor Anowar Zahid (a specialist in international trade law) defines force majeure seeing that something unexpected and beyond reasonable people foresight, an occurrence which makes the functionality of the contract impossible and, therefore, discharges the parties from the contractual obligations. Such events could possibly be war, hurricanes, fires, earthquakes, terrorism, etc.
Nevertheless, whether or not a celebration can plead Covid-19 just as a force majeure event is determined by whether or not the contract contains a clause on this regard. If it's there, even now it is determined by how it really is crafted. For instance, it (push majeure clause) can include conditions like "pandemic," "epidemic," "quarantine,” "condition," "plague," "outbreak," or "disease." Even according to the context, Covid-19 could arguably get included within the scope of broader catch-all phrases, such as for example "Take action of God," or "circumstances beyond a party's affordable control.”
If the aforementioned conditions like "pandemic" or "epidemic" aren't included in the agreement, Covid-19 may not be considered as a force majeure celebration unless the contract is being carried out in areas where in fact the government has instructed most non-essential businesses to discontinue operation, consequently, deferring the effectiveness of the contract.
If the force majeure clause itself is not included in the contract, a party may still rely on the basic principle of rebus sic stantibus, when the circumstance under that your contract was originally made has fundamentally changed. That is an exception to the principle of pacta sunt servanda (promise should be kept).
However, the courtroom of law requires a very restricted method of provide effect to the force majeure clause or the stantibus principle, and efficiency is only going to be exempted if the event that induced the party’s non-performance is certainly particularly identified. Essentially, the courtroom wants to be happy with two considerations, namely that the drive majeure gets the direct influence on the effectiveness of the contract, and that the party relying on this clause possesses taken steps in order to avoid and mitigate that result.
At this stage, it is crucial to comprehend that if a meeting like the Covid-19, benefits into economic hardships, that hardship will not amount to a force majeure event. Lots of the foreign clients are unfortunately using the Covid-19 situation as a drive majeure event (although Covid-19 didn't directly affect their performance at all) and cancelling their orders without monetary compensation. A few of these orders possessed previously reached the buyer’s ports! Such cancellation is completely illegal because as mentioned, one just can't terminate or cancel an buy as a result of economic hardships since it does not constitute a force majeure event.
Furthermore, drive majeure clause can only be invoked in cases of an executory deal ie, a contract that is yet to come to be executed. Because the orders cancelled by the potential buyers are basically contracts that have been executed, there is absolutely no scope for the use of a power majeure clause.
These against the law cancellations have resulted in enormous disruption in society as millions of workers shed their jobs and almost every one of them experience unjustified pay-cut. Rubana Huq advised DW that BGMEA is wanting to secure employees' wages: "We try not to turn off the factories,” alluding to a calamitous situation that's principally caused as a result of these illegal cancellations.
To settle such against the law cancellations, the appropriate first step would be the clients and retailers negotiating, with the aim of reaching a common ground. However, because of insufficient dispute-resolution-provisions in the contract, negotiating becomes a hard job to pull-off.
Hence, it is vital to draft a deal incorporating sufficient dispute quality provisions such as arbitration, which can ultimately help both the celebrations settle disputes that may arise through the performance of a good contract, without needing to go to the court, consequently maintaining privacy and speed.
The whole purpose of this article is to create people alert to the “force majeure” clause in order that everyone can understand when such a clause does apply, when it is not, and what you can do if such a clause is unjustifiably invoked. This article also aims to promote the incorporation of a dispute resolution provision in the deal so that you can help persons avoid exploitation, huge economic losses, and save the jobs of millions.