The actions in order to prevent the spread of a new coronavirus in Georgia have completely changed not only the social and economic situation, but, also the need to have the force majeure regulated at het legislative level, which is directly related to the right and responsibilities of the parties in the legal labor and contractual relations. Therefore, we agree, that it is the exact time to think about the legislative regulation of the issue – Nika Menognishvili, a lawyer of the organization “Young Barristers”, makes a statement about that.

According to Nika Menognishvili, force majeure, as a circumstance, that excludes responsibility, should become a subject of discussion between professional circles and legislators. The relations, based on the results of COVID 19, has shown that in the Georgian legislature the lack of a legal definition of the term is a serious problem, and the definition of it, in fact, is entrusted to the autonomy of the will of the parties. The need for having a legal definition of force majeure truly responds to the challenges of the modern legal issues and is mainly focused on avoiding predetermined outcomes.

Based on the organization’s explanation, the parties, which address the court about the disputes connected to the changed circumstances of the contract and the non-fulfillment of obligations due to the pandemic situation, should take into account, that before filing a claim, it is essentially important to have a written correspondence between the parties, that due to the changed circumstances it is impossible to fulfill the obligations and therefore to postpone it. Such kind of impossibility of fulfillment of the obligation should be from March 21, 2020 to May 22, 2020, within the period of having state of emergency in Georgia. Therefore, the justification should be based according to the normative content of Article 398 of the Civil Code of Georgia, which states, that If the circumstances that were the grounds for the conclusion of a contract have evidently changed after conclusion of the contract, and the parties, had they taken the changes into account, would not have executed the contract or would have executed it with different contents, then it may be demanded that the contract be adapted to the changed circumstances. Otherwise, taking into account individual circumstances, a party to the contract may not be required to strictly observe the unchanged contract.

According to Nika Menognishvili, the legal terms of force majeure and irresistible power sometimes are understood as identical concepts in Georgian court practice. Based on the July 23, 2009 Supreme Court of Georgia’s decision, it is stated, that during the presence of force majeure, as an irresistible force, it is impossible to fulfill the obligations properly, as it is mostly arisen independently and is an objective circumstance, which excludes the debtor’s guilt. Whilst assessing the force majeure, it is important to consider whether it was possible to avoid the force majeure situation in a particular legal relationship. Moreover, as it is known, the Georgian Chamber of Commerce and Industry is entitled to confirm the fact of having the force majeure situation in the country and it is fully dependent on the burden of proof and the content of the specific situation.

The “Young Barristers” notes out, that as a result of the pandemic situation, the cases of presenting the legal definition of force majeure are included in separate by-laws, including, whilst regulating the legal relationship of the parties in the administrative proceedings. In particular, the changes have been adapted to 9 July, 2009 N12 resolution of the National Energy and Water Supply Regulatory Commission of Georgia, and the 18 September, 2008, N20 resolution of the Energy Regulation Commission of Georgia and it was determined, that for the purposes of these rules, force majeure would be such irresistible force as: earthquake, flood, epidemic, state of emergency and etc., which isn’t depended on the enterprise and isn’t a subject of control, has an unforeseen nature, therefore it is impossible to avoid it and base on that, the enterprise can’t fulfill the conditions provided by the agreement. The force majeure must be confirmed by a competent authority, including, publishing it in the social media. Consequently, the changes once again highlighted the fact of having legal problems, linked to the lack of legal definition of it in the private law.

The organization “Young Barristers” express its readiness to have further discussion and active consultation with the professional circle about the mentioned issue, in order to have existing experience and results attached to the future legislative proposal.