Force majeure and emergency in civil law: historical roots

Back at the dawn of civilization, it was considered legally significant to perform certain actions in a natural or social disaster.Some of old legal acts included the terms "emergency", "miserable", "evil", "fire", "flood", "war", "rebellion", "inevitable", "destructive","casual", "unexpected", "fatal", "miraculous natural phenomenon". The Roman civil law used the concept of "a force majeure".Nowadays all modern legal systems use it for referring to the force majeure. The Roman law used such terms as "vis maior", "casusfortuitous", "damnum fatale". Roman jurists distinguished a simple case of casus maior - vis maior. It meant that they defined a forcemajeure as a case of the unavoidable, impossible to resist - "casus cui resisti non potest". The science of law and the doctrine of theancient time did not know the concept of "emergency", which had no legal determination. However, we are interested in the scientificterms used since ancient times in different legal systems referring to emergency events that occur outside the economic sphere of thedebtor, exceptional by the power of manifestation, which the debtor cannot prevent with available forces and means, such as naturalphenomena, the divine power, a force majeure, and etc. For example, the laws of King Hammurabi (18th century BC) contain the rule:"If a person has his own interest-bearing debt and Adad inundates his field, or a flood will carry away the harvest, or due to drought thebread will not grow, this year he is free not to return the bread to his creditor and destroy his document, and he is free not to pay theinterest for this year". Similar provisions are regular in the sources of law in ancient India, Hittite and other states. Since ancient timesrules on emergency were of great significance in the system of law, identifying the most important legal consequences of emergencysituations for the participants of public relations. In the middle of the 19th century the formation of the Institute of the emergency legislationin the state and the legal mechanism of most countries in the form of the adoption of special laws date to the period of transitionfrom absolutism to constitutional monarchy. Indeed, it should be noted that the emergency legislation reached a new level in the middleof the 19th century, resulting in introducing special laws. However, it is difficult to accept the fact that in this position it initiated theformation of the emergency legislation, for the norms on emergency (the norms operating in conditions deviating from normal) arestated in the monuments of ancient law. Historical and legal researches on the designated topic suggest the origin of the emergency legislationaimed at regulating the social relations in both the civil commodity-money circulation, and in other spheres of life, simultaneouslywith the formation of state and law. In the present study we do not attempt to define the concept of a force majeure and emergencies.However, it appears that the concept "emergency" in the civil law is broader than the concept "force majeure. The historical studiesof these concepts lead to the conclusion that the force majeure occurred much later in the emergency law and it has clear criteria limitedby the science of law.

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