| Romanovska L.А., Candidate of Law, Director, Chief Research Fellow in the field of jurisprudence at IPE LLC, https://orcid.org/0009-0004-6306-6936 |
Establishing the compliance of a significant change in circumstances under which the Supplier’s obligations for the manufacture and delivery of the Goods were determined under the State Contract (Agreement) on Procurement, due to the need to comply with technological standards for the manufacture of the appropriate quality of the relevant batch of Goods (not less than 62 working days) from knitted raw fabric, delivered on January 20, 2015 from the Republic of Uzbekistan to Ukraine, the only possible route (Uzbekistan-Kazakhstan via the Caspian Sea, Azerbaijan – Georgia – Turkey – Bulgaria – Romania – Ukraine), with a delay of 20 calendar days, which occurred in accordance with the legally related Agreement on the Organization of International and Domestic Freight Road Transportation and Forwarding Services, and caused by force majeure circumstances (force majeure), namely: adverse weather conditions in the Caspian Sea (storm), as well as a queue of vehicles (about 1000 units of vehicles) on a ferry in the port of Kuryk (Kazakhstan), is carried out by expert opinion by proving that a significant change in circumstances has been identified:
- is characterized by the following features: the unpredictability of the occurrence of such circumstances at the time of their conclusion, the duration of the stipulated circumstances, the inevitability and complete absence of fault of the parties in their occurrence;
- objectively significantly complicated the fulfilment of the Supplier’s obligations and actually eliminated the possibility of their fulfilment under the State Procurement Contract (Agreement);
- being in a causal relationship with each other, is beyond the will, desires and actions of the parties, thereby exempting them from civil liability for the consequences that disrupt the balance of property interests of the parties, depriving the latter of what they counted on when entering into contractual relations based on the results of the procurement procedure, namely: the delivery of the Goods within the established time and quantity.
An established material change of circumstances under the legislation of Ukraine (Part One of Article 652 of the Civil Code of Ukraine) is a reasonable legal basis for balancing the property interests of the parties violated as a result of its unforeseen occurrence, taking into account the principle of freedom of contract and the presence of a dispositive method of legal regulation of contractual obligations, by reviewing the essential terms of the transaction by the parties and making changes to the current contractual relations, in particular, it gives the Supplier an undoubted preferential right to initiate (demand) the lawful introduction of changes to the Schedule of the production process of the Goods, which is Appendix 3, 4 to the State Contract (Agreement) on the purchase of goods in terms of the delivery terms of the Goods.
