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THE FORCE MAJEURE DURING THE COVID-19 PANDEMIC IN BULGARIAN LEGISLATION

THE FORCE MAJEURE DURING THE COVID-19 PANDEMIC IN BULGARIAN LEGISLATION

1. What is a “force majeure”?

“Force majeure” means a circumstance (event) of an extraordinary nature that arose after the conclusion of the contract, could have not been foreseen and does not depend on the will of the parties such as: fire, industrial accidents, hostilities, natural disasters – storms, torrential rains, floods, hailstorms, earthquakes, glaciations, drought, landslides and etc., including natural disasters, embargoes, government bans, strikes, riots, and etc.

2. Who can benefit from force majeure?

According to Art. 306 of the Commercе Act, the debtor under the commercial transaction shall not be liable for failure to perform due to force majeure. If the debtor was already in default, he may not invoke force majeure. The debtor, who is unable to fulfill his obligation due to force majeure, shall inform the other party in writing of the force majeure and the possible consequences thereof for the performance of the contract within a reasonable period of time. There is no need for a force majeure clause to exist in the contract one has concluded to invoke this circumstance. Your rights arising under the Commerce Act itself.

3. Can I refer to the COVID-19 / coronavirus/pandemic as a “force majeure”?

By a decision of 13.03.2020 the National Assembly introduced a state of emergency in the Republic of Bulgaria for a period of one month, and by virtue of Order No. RD-01-124 of 13.03.2020 the Minister of Health introduced anti-epidemic measures on the territory of the Republic of Bulgaria. The subsequent Law on Measures and Actions during the State of Emergency, announced by a decision of the National Assembly on 13.03.2020 / prom. Official Gazette 28, dated 24.3.2020. Official section / arrange further numerous public and private relations during the epidemic on the territory of the Republic of Bulgaria.

Firstly, in order to answer the above-mentioned question, a careful analysis of the specific circumstances and factual circumstances of the contract and the nature of the consideration should be made, respectively, whether appropriate preventive measures have been taken to limit the crisis, applicable at that time at the time of commitment, was this possible at all. In the event that the merchant cannot be blamed and he is not already in default, then in order to absolve him of the liability, it should next be assessed whether the COVID-19 emergency is the only or at least, the predominant reason for this default – e.g. under contract for rent, delivery or others.

The burden of proof when invoking a force majeure rests with the one who invokes it. In Bulgaria, the Bulgarian Chamber of Commerce and Industry and the Bulgarian Chamber of Commerce issue force majeure certificates. However, you may also refer to the well-known fact of the COVID-19 coronavirus pandemic.

This statement reflects the principal provisions in the current legislation and the amendments, dynamic in the state of emergency, expected by the date of adoption of the Law on Measures and Actions during the State of Emergency, announced by a decision of the National Assembly on 13.03.2020. It is not tailored to the specific situation, does not constitute legal advice, does not claim to be exhaustive and will need to be supplemented in the light of subsequent changes.

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