Burdensome Agreement

In addition, if the contract leads to the transfer of a liquid asset or commodity under Article 1465 and the transfer has already taken place (i.e. the agreement has been entered into or identified or delivered in the case of structuring property), the risk resulting from the « impossibility » of the provision of the property or goods is deemed to be passed on to the creditor concerned. They therefore remain obliged to pay the corresponding consideration (for example. B payment of the price) even if the business or merchandise has been destroyed. The concept of force majeure is, under Danish law, a recognized principle, which means that a party is exempt from its obligations under an agreement and exempt from any liability related to inequity if the performance of the contract is made impossible because of exceptional events that the party concerned should not have foreseen, prevented or overcome. Typical examples of force majeure events in Danish law are the outbreak of war, rebellion, embargo and natural disasters. It should also be noted that in addition to the clauses of other matters, disputes may also arise on the basis of amendment and effect clauses (« MAC ») that are generally included in share purchase contracts, financial documents and other trade agreements. As a general rule, these clauses provide that any event that seriously affects the business, assets, position (financial or otherwise), profits and prospects of the company may result in the termination of the contract itself or affect its entry into force. In this context, a specific analysis must be carried out to understand the effects of the new coronavirus epidemic on the application of each of these clauses and, more generally, relevant contracts. As has already been said, the performance of contractual obligations must be made impossible, which means that even if the delivery becomes more expensive or even less cost-effective, it is not enough to classify an event as a force majeure. For example, if a seller can fulfill his contractual obligations by using another (albeit more expensive) subcontractor, the seller is required to do so. As noted above, the concept of force majeure is a principle recognized by Danish law, which also means that a contractor can claim the existence of a force majeure event, whether or not the contract includes a force majeure clause.

Where the specific contract contains a force majeure clause, the clause may strengthen the assessment of what constitutes a force majeure event or facilitate assessment. In addition, the contract may include a strict clause (which is not usual in Danish law). Difficult case clauses apply to situations where the performance of contractual obligations is still possible, but which is excessively distressing due to events that are not subject to the control of the parties.