Force majeure events affecting the check presentation: evaluation of article 811 TCC using the example of COVID-19 pandemic

Abstract

Force majeure events affecting the presentation of a check are regulated by Article 811 TCC. Force majeure events can generally be defined as events that (temporarily) make it impossible to fulfill any obligations, and thus, the obligations pend during the force majeure events. Article 811 TCC stipulates that the holder of a check affected by a force majeure event may present the check later without losing any of his or her rights. It reflects the general understanding of the force majeure institution and has been exercised in a few cases until now. Therefore, some questions, such as which events shall be deemed to be a force majeure event under the terms of Article 811 TCC, whether the coronavirus disease 2019 (COVID-19) pandemic hinders the holders of a check to present it, and whether the notification and recording obligation of the holder as it is foreseen in the second paragraph of Article 811 TCC is absolute, are still unaddressed. The relation of Article 811 TCC with the interim Article 1 of Law Nr 7226 with respect to the COVID-19 pandemic also needs to be highlighted. Against this background, this paper deals with the aforementioned questions and comes inter alia to the following conclusions: COVID-19 pandemic is a force majeure event in terms of Article 811 TCC. Article 811 TCC should be applied in the cases of the delays of check presentation instead of the interim Article 1 of Law Nr 7226. The interim Article 1 of Law Nr 7226 can however be used to interpret and complement Article 811 TCC. Finally, the notification and recording obligation of the holder as it is foreseen in the second paragraph of Article 811 TCC are not absolute.