Article 904. Excuse due to an impediment
(1) A debtor’s non-performance of an obligation is excused if it is due to an impediment beyond the debtor’s control and if the debtor could not reasonably be expected to have avoided or overcome the impediment or its consequences.
(2) Where the obligation arose out of a contract or other juridical act, non-performance is not excused if the debtor could reasonably be expected to have taken the impediment into account at the time of conclusion.
(3) Where the excusing impediment is only temporary the excuse has effect for the period during which the impediment exists. However, if the delay amounts to a fundamental non-performance, the creditor may resort to the remedies granted by such non-performance.
(4) Where the excusing impediment is permanent the obligation is extinguished. Any reciprocal obligation is also extinguished. In the case of contractual obligations any restitutionary effects of extinction are regulated by the rules in Articles 926-932 with appropriate adaptations.
(5) The debtor has a duty to ensure that notice of the impediment and of its effect on the ability to perform reaches the creditor within a reasonable time after the debtor knew or could reasonably be expected to have known of these circumstances. The creditor is entitled to damages for any loss resulting from the non-receipt of such notice.
(6) The excusing impediment does not excuse the debtor from damages if the impediment occured after non-performance of the obligation unless the creditor could not, in any event, due to the impediment, have benefited from the performance of the obligation.
Author: Octavian Cazac
Published: 29 June 2020
Origin of the rule: Art. III.–3:104 DCFR; Art. 7.1.7 UNIDROIT Principles