A Comparative Study of the Theory of the Hardship and Force Majuere in PECL, UNIDROIT Principles and Iranian Law

Unforeseeable changed circumstances are one of the major problems of parties – especially those who are party to a long contract. None of the legal systems have accepted the performance of contract in new situation. There are various theories to answer these situations. In this article، we choose two important theories، namely Hardship and Force Majeure. Hardship would be defined as a situation in which the contract would be too difficult to perform because of the change of circumstances and occurrence of unforeseeable events. The concept of Force Majeure providing for the discharge of one or both parties occurs when the performance of contract is impossible due to unforeseeable events beyond the control of the parties. The concepts of Hardship and Force Majeure seem to be related to each other، specially that they both cater to the situations of changed circumstances and both of them have some same features. However، there are some differences between them. Hardship occurs where the performance of the disadvantaged party has become much more burdensome، but not impossible، wheras Force majeure means that the performance of contract becomes impossible at least temporarily. Furthermore، there are some other differences such as difference in the effect of these theory. In the theories of Hardship، the contractual relationship will continue with the adaptation mechanisms; but the Theory of Force majuer grants exemption with termination and suspension.