Thwarting the contract because of Force Majeure
The definite clause in the knowledge that is now relevant and once stood unused is an existing contract thwarting clause, due to the spread of the corona plague in the world and the shutdown of social and economic life throughout the world.
First, the termination of the contract is not ‘cogent’ but rather ‘dispositive’.
Therefore, the provisions of the contract prevail over the provisions of the law in this matter.
However, there is no specific reference in the lease to the matter of ‘force Majeure, so the relevant provision of the law is section 15 (a) of the Lease Law which states: ” “If the leased property was real estate and the renter was prevented from using it for the purpose of the lease due to circumstances related to the apartment or the ways of accessing it and the renter did not cancel the contract due to this, he is exempt from paying the rent for the period of time as aforesaid; the landlord may, after a reasonable time in the circumstances, cancel the contract, unless the tenant has previously informed him that he waives the exemption from paying the rent.”
This section should be read in conjunction with section 18 of the Remedies Contracts Act which states that:
“(A) The breach of contract as a result of circumstances which the violator, at the time of the conclusion of the contract, did not know and should not have known or had not seen and could not have foreseen, and could not enforce the contract in those circumstances is impossible or fundamentally different in a basic way from what was agreed between the parties, the breach will not be a ground for enforcing the breached contract or for compensation. ”
Hence, in order for an event to be recognized as a ‘force Majeure under the Contracts Law, it must pass a number of cumulative tests:
• Inability of the violator to anticipate such reasons in advance.
• Inability to prevent the circumstances that prevent the use of the apartment.
• Existence of a causal link between the same ‘force Majeure and the inability to comply with the provisions of the lease in full or almost completely.
In other words, no matter how difficult an economic difficulty is, it does not in itself constitute a preventive event. The section applies in cases where the tenant is unable to derive pleasure or benefit from the apartment due to extreme external circumstances related to the apartment, or in the ways of accessing it.
And prevention can be both legal, not necessarily physical.
The exemption for thwarting will apply only when the circumstances creating the impediment were unknown and foreseeable, in force or in practice, to the tenant or landlord, and there was no ability to prevent them.
These are cumulative conditions that can be learned from the general law of thwarting.