(Правовое руководство по составлению строительных контрактов)
During the course of construction, events may occur which impede the performance by a party of his contractual obligations. The present chapter concerns clauses under which a party who fails to perform a contractual obligation due to an impediment is exempted from certain legal consequences of the failure. It would be in the interest of the purchaser if the scope of the exemption clause were limited, both as to the events which constitute exempting impediments and the legal consequences of exempting impediments. The parties may wish to enable both parties to invoke an exemption clause (paragraphs 1 to 4).
Rules in some legal systems concerning exemption from legal consequences of a failure to perform may lead to results which are incompatible with the circumstances and needs of international trade. The parties may, therefore, wish to include in the contract an exemption clause defining exempting impediments and specifying the legal consequences of those impediments (paragraphs 5 to 7).
In order to limit the scope of an exemption clause, the parties may wish to provide that a party failing to perform is exempt only from the payment of damages or of an agreed sum to the other party (paragraph 8).
The parties might also limit the scope of the exemption clause by adopting a restricted definition of exempting impediments. One approach may be to provide only a general definition of exempting impediments (paragraphs 10 to 12). Another approach may be to provide a general definition together with an illustrative or exhaustive list of events to be considered exempting impediments, or a list of events to be considered exempting impediments whether or not they come within the general definition (paragraphs 13 to 16). A third approach may be to provide an exhaustive list of events to be considered exempting impediments without a general definition (paragraph 17). The parties may wish to consider various types of events to be included in a list of exempting impediments (paragraphs 18 to 22).
The scope of an exemption clause might be further clarified by expressly excluding some events which might otherwise come within the scope of the clause. The parties may wish to consider whether certain acts of a State or of State organs, such as the denial or withdrawal of a licence or approval, are to be regarded as exempting impediments (paragraphs 23 and 24).
The parties may wish to provide in the contract the conditions under which a contractor is exempt when his failure to perform is due to a failure by a third person engaged by him (paragraphs 25 and 26).
It is desirable for the contract to obligate a party invoking an exempting impediment to give written notice of the impediment to the other party. The contract might provide that a party who fails to give such notice loses his right to invoke the exempting impediment. Alternatively, the contract may provide that the party remains entitled to invoke the exempting impediment, but that he is liable to compensate the other party for losses resulting from the failure. The contract might also require verification of an impediment for it to be relied upon. Further, the parties may wish to provide that, upon notification of an exempting impediment, they are to meet and consider what measures to take in order to prevent or limit the effects of the impediment (paragraphs 27 and 28).