In light of the rapidly evolving regional developments witnessed globally, numerous commercial activities and international contracts in the State of Qatar have been affected, leading to difficulties in the performance of certain contractual obligations. This raises the question of whether such events constitute force majeure, thereby exempting the debtor from liability, or whether they amount to exceptional circumstances (hardship) that warrant adjustment of the obligation without extinguishing liability.
In this context, it is necessary to refer to the provisions of the Qatari Civil Code governing force majeure and its effect on contractual obligations. Force majeure is understood as any external event beyond the control of the debtor, unforeseeable at the time of contract formation, and unavoidable or incapable of being mitigated, which results in the absolute impossibility of performing the obligation.
This aligns with the interpretation of the statutory provisions, whereby force majeure consists of a foreign cause beyond the debtor’s control that renders performance absolutely impossible, leading to the extinguishment of the obligation and the exclusion of liability.
It is further evident that force majeure is subject to essential conditions, foremost among which are that the event must be unforeseeable, unavoidable, and must result in absolute impossibility of performance, such that the debtor is incapable of fulfilling the obligation by any means.
The Qatari Civil Code No. (22) of 2004 regulates this matter through several provisions. Article (204) provides that the debtor shall not be liable for compensation if he proves that the damage arose from a foreign cause, such as force majeure. Article (188) further stipulates that in bilateral contracts, if performance of an obligation becomes impossible due to a foreign cause, the obligation is extinguished and the contract is automatically terminated by operation of law, with no liability for compensation due to the absence of fault on the part of the debtor.
The effect of force majeure varies depending on the nature of the impossibility. If the impossibility is temporary, its effect is limited to the suspension of performance until the impediment ceases. However, if it is permanent, it leads to the extinguishment of the obligation and the termination of the contract. Nevertheless, the debtor is not exempt from liability if he was already in delay prior to the occurrence of the force majeure event, or if he has contractually assumed its risks.
If, however, the circumstances do not reach the level of absolute impossibility, but rather render performance excessively onerous due to exceptional and unforeseen circumstances, this falls within the scope of the doctrine of exceptional circumstances (hardship) as regulated under Article (171), which grants the court the authority to reduce the onerous obligation to a reasonable level in order to restore contractual balance between the parties.
In this regard, the Qatari Court of Cassation confirmed in its judgment in Appeal No. 134 of 2015 (session of 26 May 2015) that an exceptional circumstance does not constitute force majeure negating liability unless it is unforeseeable and impossible to avert. It further held in Appeal No. 737 of 2021 (session of 28 December 2021) that termination of the contract occurs where performance becomes impossible due to a foreign cause, while distinguishing between force majeure and hardship, the latter allowing the court to adjust the obligation to a reasonable level. Accordingly, the mere occurrence of an exceptional circumstance is insufficient to qualify as force majeure unless it reaches a degree of severity rendering performance impossible.
Accordingly, the distinction between force majeure and hardship remains dependent on the impact of the exceptional circumstance on contractual performance. If the event is unforeseeable, unavoidable, and renders performance impossible, it may be classified as force majeure resulting in the extinguishment of the obligation. Conversely, if its effect is limited to rendering performance onerous without reaching the threshold of impossibility, it falls within the doctrine of exceptional circumstances, permitting modification of the obligation without its extinguishment.
In light of the foregoing, regional developments affecting commercial activities in the State of Qatar do not, by their mere occurrence, constitute force majeure. Rather, the determination depends on the extent of their impact on the performance of the contractual obligation. If such impact renders performance impossible, the event may qualify as force majeure leading to the extinguishment of the obligation. However, if it merely renders performance onerous without reaching impossibility, it falls within the scope of exceptional circumstances, allowing for adjustment of the obligation without its termination—particularly in sectors such as trade, transport, and supply of goods, which may be affected by such developments to varying degrees.