Does the presence of force majeure circumstances prevent amendments to the contract due to significant changes in conditions? - Ruling of the Supreme Court's Commercial Court.

The presence of force majeure circumstances excludes the possibility of making changes to the contract due to a significant change in circumstances. This is stated in the ruling of the Commercial Cassation Court of the Supreme Court dated October 10, 2024, in case No. 910/332/24.

The LLC filed a lawsuit requesting amendments to the contract by extending the deadlines for fulfilling obligations and increasing the duration of the contract, arguing that the conditions under which the parties entered into the contract have significantly changed since 2023 due to force majeure circumstances (intensification of hostile attacks/shelling, mobilization, etc.). Therefore, the claimant believes they have the right to amend the contract based on Article 652 of the Civil Code of Ukraine and paragraph 4 of part 5 of Article 41 of the Law of Ukraine "On Public Procurement".

The local economic court denied the claim on the grounds that the parties had entered into the contract during the period of martial law and the introduction of mobilization measures, the consequences of which the claimant should have considered when signing the contract. Moreover, the force majeure circumstances cited by the claimant that arose since 2023 existed at the time the transaction was made. Additionally, the Law of Ukraine "On Public Procurement" does not provide for cases of mandatory extension of the contract's duration, concluded as a result of public procurement, at the request of one of the parties, including through court appeal, indicating a lack of grounds for satisfying the claim to amend the contract according to Article 652 of the Civil Code of Ukraine and paragraph 4 of part 5 of Article 41 of the Law of Ukraine "On Public Procurement". This decision was overturned by the appellate economic court, and the claim was granted.

The Commercial Cassation Court of the Supreme Court, leaving the decision of the first instance court unchanged and canceling the ruling of the appellate court, noted the following.

The conclusions of the appellate court regarding the existence of grounds for applying Article 652 of the Civil Code of Ukraine to the disputed legal relations and making amendments to the contract based on this norm while simultaneously establishing grounds for satisfying the claim due to the existence of force majeure circumstances indicate incorrect application of the specified norm of substantive law by the appellate court in this case, as in the presence of force majeure, the provisions of Article 652 of the Civil Code of Ukraine do not apply.

The claimant could and should have reasonably anticipated the emergence of difficulties in fulfilling the contract related to the introduction of martial law, considering that at the time of the contract's conclusion, martial law was already in effect across the entire territory of Ukraine. Therefore, the occurrence of the events cited by them cannot be considered grounds for amending specific points of the contract and its annex due to a significant change in circumstances, and the first instance court did not establish the existence of force majeure circumstances.