Abstract.
Risk is a fundamental characteristic of entrepreneurial activity and a determining factor in the behavior of business entities in conditions of economic volatility and uncertainty. Commercial risk, as an inherent element of entrepreneurial activity, performs a constructive function when properly forecasted and managed, promoting the adaptability, resilience, and strategic development of business entities. In contrast, a material change in circumstances is objectively unpredictable in nature, goes beyond the scope of normal fluctuations in the business environment, and may necessitate the revision or termination of contractual obligations due to a disruption in the balance of interests between the parties. This article provides a comprehensive analysis of the correlation between commercial risk, a material change in circumstances, and force majeure in contract law. It summarizes the provisions of national legal doctrine and judicial practice regarding their interrelationship and identifies key issues in the application of the law related to the tendency toward a broad interpretation of commercial risk. It is argued that such a practice complicates the application of the mechanism provided for in Article 652 of the Civil Code of Ukraine and may lead to the unjustified imposition of negative consequences on one of the parties to the contract, creating an imbalance in contractual legal relations. Based on the conducted research, the author proposes an original approach to distinguishing between these legal categories according to the criteria of predictability, controllability, and the specific nature of their impact on the performance of obligations. It is demonstrated that commercial risk falls within the scope of ordinary business activities and does not constitute grounds for intervention in contractual relations, whereas a material change in circumstances and force majeure are exceptional in nature and necessitate the application of special legal mechanisms. It is concluded that a clear distinction between commercial risk, a fundamental change in circumstances, and force majeure is a necessary condition for ensuring legal certainty, predictable contractual regulation, and achieving a fair balance of the parties’ interests, as well as for preventing the abuse of contractual freedom in legal practice.
