Senegal has been in the midst of a COVID-19 pandemic since 28 February 2020. Several impacts are already to be reported, including the suspension of economic activity or at least the modification of their methods of implementation. This situation has led to a series of government measures1.
The purpose of this brief is to analyze COVID-19 impacts on the activities of businesses, and how they can lead to force majeure under Senegalese law.
COVID-19 and the definition of force majeure
Criteria for defining force majeure
Prima facie, force majeure falls under the scope of the law governing the contract as agreed by the parties in their contract.
Under Senegalese law, it is referred to under the Commercial and Civil Obligations Code (COCC) which states that there is no liability if the harmful event is the consequence of a force majeure or a fortuitous event, i.e. an external, irresistible, and unforeseeable event.”2
This enumeration makes it possible to retain three criteria for defining force majeure: externality, unpredictability and irresistibility.
The event potentially constituting force majeure must first be outside the will of the party invoking it. This means that the party invoking force majeure must not be at the origin of the event or be involved in its occurrence.
This requirement of externality flows from a Senegalese Court of Cassation judgement which held that "Force majeure should not apply further to a strike broken out within the company invoking it. The requirement of externality is not satisfied, and unpredictability appears likely.''3
Within the meaning of Article 129 above, the event in question must be unforeseeable for the parties on the day of conclusion of the contract. In other words, the contracting parties must only be reasonably able to prevent the event potentially constituting force majeure in order to anticipate and limit the damage.
If unpredictability is not established, or if it appears highly unlikely to occur, force majeure will be excluded. This was the reasoning of the Senegalese Court of Cassation in the above-mentioned judgement.
The rapid expansion of COVID-19 is such that it does not give economic operators sufficient margin to protect themselves against it.
In order to be able to invoke irresistibility as provided under Article 129 of the COCC, the debtor of the obligation must establish that the event that has occurred prevents the performance of such an obligation.
For example, the measures taken by the Senegalese government to confront the COVID-19 pandemic (border closures, curfews at certain times, etc.) may make the performance of certain contracts particularly difficult or even impossible.
The modalities of implementation of force majeure
It should be noted that under Senegalese law, force majeure rules apply automatically to contracts. This is quite different from the common law rules which oblige parties who wish to have force majeure relief to explicitly mention it on the one hand, and on the other hand, to define what constitutes force majeure in the contract itself.
It is worth mentioning also that Senegalese law allows parties to explicitly derogate from the definition provided under Article 129 COCC and agree on what constitutes force majeure in their contract. In doing so, they can extend the definition provided under Article 129, and adapt it to their business.
This option is provided under Article 132 COCC.
However, if any dispute arises, the court assessment would prevail. See: Supreme Court judgement ruling that ''Force majeure is a concept of law subject to the assessment of the Supreme Court".4
COVID-19 as a trigger of force majeure
Force majeure and its impact on ongoing agreements
Once force majeure has been established, the contract is then suspended or terminated depending on the duration of the force majeure event, and the nature or the duration of the agreement is affected.
In the case of long-term contracts, a temporary force majeure event such as a pandemic may result in the suspension of the affected agreement until the end of the pandemic. This could be the case for COVID-19.
When the execution of the contract becomes impossible, in particular in case of the disappearance of the object of the contract, force majeure becomes a legal condition for the termination of the contract.5
Force majeure and the responsibility of the contracting parties
Force majeure is a source of liability exemption.6 Contractual liability cannot therefore be incurred in respect of obligations affected by force majeure and the party concerned is therefore released from it. Also, it should be noted that the affected party must not be linked to any personal failure to perform the contract in question. When the fault of the person causing the damage is established, the exonerating effect of force majeure would not apply.7
This brief does not constitute a legal opinion on the issues raised. It contains general guidelines that are not applicable to specific situations, which deserve to be analyzed on a case-by-case basis and which may require the application of special rules in force in Senegal.
2Article 129 of the Civil and Commercial Code.
3Court of Cassation, 20 October 2004, Ruling Number 142, available on: https://juricaf.org/arret/SENEGAL-COURDECASSATION-20041020-142
4Supreme Court, Administrative Chamber, 24 June 2014, Ruling Number 38 available at: https://juricaf.org/arret/SENEGAL-COURSUPREME-20140624-38
5Article 92 of Administration's Code of Obligations
6Articles 90 of Administration’s Code of Obligations and 129 of Civil and Commercial Code;
7Article 219 paragraph 2 of Civil and Commercial Code.