During the quarantine period and following the outbreak of war in Ukraine, the concept of “force majeure” (act of God) became a common feature of business contracts and legal disputes. However, today’s geopolitical and technological threats raise new questions: Could a drone attack be considered a force majeure event that would exempt a contracting party from liability for failure to perform its obligations?
According to legal experts, the answer depends not on the mere fact that a drone was used, but on whether the specific attack objectively prevented the fulfillment of contractual obligations.
“Force majeure” refers to circumstances that a party to a contract cannot control, foresee, or avoid, and which make it impossible to fulfill the obligations assumed under the contract. Under Lithuanian law and international practice, such circumstances must be unforeseeable, uncontrollable, unavoidable, and actually prevent the performance of the contract.
The mere fact that a drone attack occurred would not in itself constitute “force majeure.” However, in certain cases, such a situation could be recognized as a force majeure circumstance—for example, if the drone incident resulted in the closure of Lithuanian airspace, the damage or destruction of critical infrastructure, state authorities were to prohibit certain activities, a real threat to employee safety were to arise, logistics or supply routes were to be disrupted, or it were to become physically impossible to deliver goods or provide services.
According to a partner at the law firm “Leagus,” Roberto Naruševičius, in disputes of this nature, the decisive factor would not be the literal text of the contract, nor whether the word “drone” is directly mentioned in it.
“The most important thing is to assess whether the drone attack had a direct impact on the performance of a specific contract, whether this impact was objectively beyond the party’s control, whether the party took measures to mitigate the damage, and whether there were realistic alternatives for fulfilling the obligations in another way,” notes attorney Robertas Naruševičius.
According to him, in practice, the assessment would focus on whether the performance of the contract has become actually impossible, rather than merely more economically complex, more expensive, or less convenient. In other words, “force majeure” cannot be invoked automatically merely because of increased costs or a disruption to the normal pace of work.
It is also important to note that force majeure circumstances are often temporary in nature. In such cases, a party to the contract may be exempt from liability only for the period during which the specific circumstance actually prevented the performance of the contract. Once the obstacle has ceased, the performance of obligations must resume.
If it were determined that the failure to perform the contract was in fact caused by circumstances of force majeure, the party in breach of the contract would not be subject to the usual consequences of civil liability provided for in Articles 6.205–6.216 of the Civil Code. This means that, to the extent that the failure to perform the obligation was caused by force majeure, that party could not be subject to contractual penalties, claims for damages, or other forms of contractual civil liability.
As geopolitical and technological risks increase, businesses are advised to review the “force majeure” provisions in their contracts in advance. These provisions should clearly specify not only traditional situations such as war or natural disasters, but also modern risks: drone attacks, cyberattacks, the imposition of sanctions, airspace closures, infrastructure sabotage, or the escalation of military actions.
Clearer contractual provisions help reduce the risk of disputes, allow for a more precise definition of the parties’ liabilities, and provide businesses with greater legal certainty in cases where the normal performance of a contract becomes impossible due to external circumstances beyond the parties’ control.
Robertas Naruševičius, “Leagus” Law Firm
