A brief insight pursuant to Operation "Protective Edge" 2014
Adv. Benjamin Leventhal
Litigation Partner at Gideon Fisher & Co. Tel Aviv Israel
The doctrine of force majeure, meaning a contractual protection/disclaimer for non-performance of a contractual obligation due to unexpected occurrences, usually applies also to instances of acts of war; military acts; hostilities; terrorist activities and more, and in many cases a party invoking said argument (assuming fulfillment of common conditions), will indeed be entitled to protection from breach of contractual obligations.
In Israel, however, while based on the similar principals of law (a rather interesting combination of common law and civil code), the doctrine applies rather differently, and is very limited in providing force majeure protection in cases of acts of war, terrorism, militant hostilities etc., if at all.
Contracting parties regarding an Israeli related matter or party, would NOT be able in many cases to use the argument of force majeure based on act of war or terrorist activity (such as the 2014 "Protective Edge" operation) to justify noncompliance or nonperformance of a contractual obligation – this is because in Israel, the courts perceive the foreseeability of acts of war as something a contracting party must or should take into consideration when doing Israeli related business.
This approach originated in the 1970's, where the courts held that until Israel reaches the peace longed for with its neighbors, the risk of war at any designated time, close or remote, always exist, and the unpredictability of peace and war is actually the predictable for any Israeli (that should always predict a possible state of war).
There seems to be a slight movement in the case law toward applying a more somewhat liberal approach applying the force majeure doctrine.
Thus, in Israel, it is extremely important to be aware of the somewhat different status of the "force majeure" doctrine and the following:
- Control the unknown rather than have the unknown control you.
- In case of failure of any kind to perform contract, due to the military operation "protective Edge", or such militant occurrences - breaching party may be prevented to raise the "force majeure" defense, and perhaps remedy is in place.
- For a breaching party it is important to align the "force majeure" argument with the case law in order to achieve protection from claims of remedy etc.
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