Law and regulation of force majeure in Slovakia

Yes, the Civil Code (applicable to B2C transactions) and the Commercial Code (applicable to B2B transactions).

Section 420 (1) of the Civil Code: Every person is liable for the damage he/she causes by a breach of a legal obligation. 
Section 420 (3) of the Civil Code: Any person who proves that the damage was not caused by his/her fault will be released from liability.

Section 420a (1) of the Civil Code: Every person is liable for the damage he/she causes to another person by his/her operating activities. 
Section 420a (3) of the Civil Code: Any person who causes damage shall be released from liability only if he/she proves that the damage was caused by an unavoidable event not originating in the operation or by the conduct of the aggrieved party.

Sections 373 et. seq. of the Slovak Commercial Code: The contracting parties are not liable for a failure to fulfil contractual obligations, if the failure was caused by circumstances excluding liability. 
Those circumstances are defined as obstacles: (i) which occurred independently of the intent of the obliged party; and (ii) which prevent the obliged party from fulfilling its obligation; if (iii) regarding such obstacles it may not be reasonably assumed that the obliged party could have averted or overcome them (or their consequences), or could have foreseen such obstacles at the time when the obligation was agreed.

Parties can only exclude the applicability of force majeure clauses in commercial relationships (i.e. B2B transactions). In commercial contracts, the parties may also set out what they deem to be circumstances of force majeure preventing a party from being able to perform its obligations.

Where the parties fail to include a force majeure clause in their commercial contract, then the default provisions of the Commercial Code law on force majeure will apply. 

The application of the Civil Code clauses, which apply in B2C transactions, may not be excluded or regulated.

Parties to a commercial contract may regulate force majeure clauses. There are no specific principles they would have to comply with in relation to their agreement. 

In Slovakia, the following general rules must be observed:

1. A legal act is invalid if the content or the purpose thereof violates or evades the law or is inconsistent with good morals. 
2. Exercise of a right that is contrary to the principles of fair business conduct shall not enjoy legal protection. 

However, these provisions do not affect the ability of the parties to exclude or regulate the force majeure clause in any way.

There is no prevalent case law in this respect. In practice, any situation that causes an inability to fulfil an obligation will be considered on a case-by-case basis. An obstacle to the fulfilment of an obligation must be objective, unforeseeable and unavoidable.

Yes. 

In B2B transactions, the application of the force majeure provisions of the Commercial Code can be fully excluded. In such a case, the obliged party would be fully liable for the failure to fulfil its contractual obligation.

In B2C transactions, the application of the relevant clauses in the Civil Code cannot be excluded or regulated.

A stipulation in a contract always creates a stronger position and avoids possible risks such as a dispute over forms, proving that the other party accepted the T&Cs, etc. 

However, if T&Cs are duly accepted by both parties, there should be no difference, at least not in B2B transactions. In B2C contracts, the situation may differ, as consumers enjoy broader protection. Notwithstanding the contractual arrangements (whether in the contract or T&Cs), force majeure clauses of the Civil Code will apply to consumers. 

In our opinion, it is difficult to identify one force majeure clause which would be universal and suitable for all possible events and situations caused by the Coronavirus pandemic. When drafting such clauses, the specifics of the transaction and of the parties should be taken into account.

Force Majeure Event: if and to the extent that either party’s performance of any of its obligations under this agreement is delayed by revolution or other civil disorders; wars; acts of terrorists or enemies; fires; floods; acts of God; pandemic; federal, state or municipal action; statutes, ordinances or regulations; or any other cause beyond the control of such party (each, a “Force Majeure Event”), and such non-performance could not have been prevented by reasonable precautions, then the non-performing party will be excused from any further performance of those obligations for as long as this Force Majeure Event continues, and the non-performing party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of temporary alternate sources, temporary work around plans, or other means. The non-performing party must immediately notify the other party by telephone or other expeditious means of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event, the steps they expect to take to mitigate the impact of such a Force Majeure Event on their performance and the expected duration of the delay.

Notwithstanding anything else in the foregoing, the following events will not cause a Force Majeure Event: server failures; software glitches; disputes with copyright holders or patent holders; and any strike or labour dispute involving Supplier or Suppliers’ Personnel A pandemic may also be specifically excluded. On receipt of a notice from the Supplier regarding the existence of a Force Majeure Event, the Purchaser may require the Supplier to demonstrate the existence of the Force Majeure Event in order for the event to be considered a Force Majeure Event and excuse the Supplier’s obligations pursuant to this Section.

Apart from the force majeure regulation, Slovakian law also recognises situations when performance becomes impossible. In such a situation, the respective contractual obligations cease to exist. However, the practical applicability of this section in the case of the Coronavirus is questionable. A contract does not become frustrated if the liable party is able to fulfil its obligation later, within an additional period provided by the entitled party, despite having to make extra efforts or incur additional costs, etc.

The main legal consequence of the Coronavirus outbreak could be a suspension of obligations under the contract. Force majeure does not as such terminate the obligations of the obliged party if performance remains possible after the force majeure circumstances abate.

To apply a force majeure clause, the other party must be notified. A failure to meet this requirement may trigger liability for damages.

Circumstances excluding liability (force majeure) will not affect the obligation to pay a contractual penalty, unless otherwise agreed.