A supply chain disruption hits a European manufacturer mid-contract. Its Romanian counterpart stops delivering, citing an event beyond its control. The manufacturer demands performance. The counterpart invokes force majeure. Neither party anticipated this moment – yet both now face a Romanian court system, a civil law tradition, and two closely related but legally distinct doctrines that will determine who bears the loss.
Force majeure and hardship (impreviziune) in Romania are codified in the Romanian Civil Code, the country's primary instrument of civil and commercial legislation. Force majeure excuses performance entirely where an external, unforeseeable event makes it absolutely impossible. Hardship applies where performance is still physically possible but has become excessively burdensome due to changed circumstances, triggering a right to renegotiate or seek judicial adaptation. Both doctrines have generated divergent court interpretations since the Civil Code's entry into force, making early legal assessment essential for any international business with Romanian contractual exposure.
This analysis examines the doctrinal foundations of both instruments, maps the gap between statutory text and actual court practice, identifies the strategic options available to contracting parties. Additionally. Addresses the cross-border considerations that matter most to European clients operating under or alongside Romanian-law agreements.
Doctrinal foundations: two related instruments, different thresholds
Romanian civil and commercial legislation draws a clear structural distinction between force majeure and hardship. The distinction matters in practice because the remedies available under each doctrine are fundamentally different.
Force majeure in Romania requires the simultaneous presence of three conditions. The event must be external to the debtor's sphere of control. It must be unforeseeable at the time the contract was concluded. And it must render performance absolutely impossible – not merely more difficult or more expensive. Romanian courts have consistently held that a sharp rise in input costs, a currency depreciation, or a tightening of credit conditions does not, by itself, satisfy the impossibility requirement. These events make contracts harder to perform. They do not make performance impossible in the strict legal sense.
Where force majeure is established, Romanian civil legislation provides for the suspension of the obligation for the duration of the event. If the event is temporary, the obligation revives once it ends. If the event is permanent or the delay makes performance pointless, the obligation is extinguished and the contract terminates without liability on either side. The party invoking force majeure must notify the counterparty promptly. Failure to notify within a reasonable time – or within any contractually agreed timeframe – can transform the exemption into a liability. Practitioners in Romania note that this notification requirement is frequently overlooked, particularly by foreign parties who assume that the event itself is sufficient notice.
Hardship – known in Romanian civil legislation as impreviziune – occupies a different position on the spectrum. Performance must still be possible. What has changed is the equilibrium of the contract: the burden on one party has increased so dramatically that continued performance would be grossly inequitable. Romanian civil legislation requires that the change in circumstances occurred after the contract was concluded. That it was unforeseeable at the time of contracting. Additionally, that the affected party did not assume the risk of the change either expressly or by implication.
The primary remedy under hardship is not termination but renegotiation. The affected party has the right to request that the counterparty renegotiate the contract terms in good faith. Only if renegotiation fails – or if the counterparty refuses to engage – may the affected party apply to a court for adaptation or termination. Romanian courts have the power to adapt the contract to restore a reasonable equilibrium. This power is significant: it means a Romanian court can, in principle, rewrite the price term, the delivery schedule, or the payment structure of a commercial agreement. The scope of that judicial discretion is one of the most contested areas in current Romanian commercial litigation.
Competing court interpretations and the gap between statute and practice
The Romanian Civil Code entered into force in 2011. Since then, courts across Romania have applied these doctrines in ways that have not always been consistent. The divergence is most visible in three areas.
First: the standard for unforeseeability. Some courts apply a subjective test – what this particular contracting party, in these particular circumstances, could reasonably have anticipated. Others apply a strict objective standard – what a hypothetical prudent professional in the same sector would have foreseen. The difference matters considerably. Under a subjective test, a small enterprise with limited market intelligence has a stronger case. Under an objective test, any sophisticated commercial party operating in a volatile market environment will struggle to argue that price swings or geopolitical instability were unforeseeable.
Second: the degree of imbalance required for hardship. Romanian civil legislation does not quantify the threshold. Courts have used phrases such as "excessively onerous" and "grossly inequitable" without settling on a consistent measure. A significant share of first-instance decisions have required the affected party to show that the change in economic circumstances was of a magnitude that fundamentally alters the contractual allocation of risk. Appellate courts have at times reversed decisions where the lower court found hardship on the basis of relatively modest cost increases. Practitioners handling commercial disputes in Romania advise clients not to assume that any significant cost increase will suffice.
Third: the interaction between contractual force majeure clauses and the statutory regime. Many commercial contracts in Romania – particularly those drafted by or for international parties – contain their own definitions of force majeure. These definitions sometimes broaden the statutory scope (for example, by including economic crises or regulatory changes) and sometimes narrow it (by requiring certification by a chamber of commerce). Romanian courts have generally respected contractual variations, but have also held that parties cannot entirely exclude the statutory hardship regime. An attempt to contractually exclude impreviziune altogether has been treated with scepticism by some courts, which have read such exclusions narrowly.
The practical consequence of this divergence is uncertainty. A party filing a statement of claim in a Romanian court on force majeure or hardship grounds cannot reliably predict how the court will define the key thresholds. This uncertainty increases the value of early negotiation and of well-drafted dispute resolution clauses. It also increases the risk of inaction: a party that waits too long to invoke either doctrine. or fails to document the factual basis carefully. may find the defence unavailable when it is most needed.
For a broader view of how commercial disputes are handled across the region, the firm's analysis of corporate disputes in Romania sets out the procedural landscape and strategic options available to international clients.
Strategic options for contracting parties: before and after disruption
The most effective strategy for managing force majeure and hardship risk in Romania operates at two levels: contractual drafting before disruption occurs, and procedural positioning after it does.
Before disruption: drafting considerations. Parties with freedom to negotiate Romanian-law contracts should address both doctrines explicitly. A well-constructed force majeure clause will define the qualifying events with precision, set out a notification procedure with a specific timeline. Additionally. Address the consequences of prolonged force majeure (for example, a termination right after a defined period). Parties should also consider whether to include or exclude the hardship regime. As noted above, a complete exclusion may not be enforceable. A partial modification – for example, specifying that renegotiation must be completed within 30 days or the matter proceeds directly to arbitration – is more likely to be upheld.
The choice of dispute resolution mechanism is also material. Romanian state courts apply Romanian civil legislation directly and have the power to adapt contracts under the hardship regime. An international arbitral tribunal seated outside Romania may apply Romanian law differently, and its powers of adaptation depend on the applicable arbitration rules. Parties who prefer predictability should consider whether arbitration under established international rules, with experienced arbitrators familiar with civil law systems, offers a more controlled environment than Romanian state court litigation.
After disruption: procedural positioning. Once a disruptive event occurs, the affected party faces a sequence of decisions. The first is notification. Under Romanian civil procedure and applicable civil legislation, the failure to notify the counterparty promptly of a force majeure event can defeat the exemption. Notification should be documented – ideally in writing, with delivery confirmation – and should describe the event, its nature, its expected duration, and its effect on performance obligations.
The second decision concerns the choice between renegotiation and immediate litigation. For hardship, Romanian civil legislation requires a genuine attempt at renegotiation before a court application is made. A party that proceeds directly to court without first requesting renegotiation risks having its claim dismissed on procedural grounds. Renegotiation requests should be made formally, with a record of the counterparty's response or refusal.
The third decision concerns interim relief. Where a party faces immediate financial exposure – for example, because the counterparty is pursuing enforcement of a payment obligation while the force majeure defence is pending – an interim injunction can provide temporary protection. Romanian civil procedure allows courts to grant interim measures, including suspension of enforcement, on an urgent basis. The conditions are strict: the applicant must show a credible legal basis, urgency, and a risk of irreparable harm. Court filing for interim measures can be completed within days. The hearing and decision typically follow within two to four weeks in practice. However, interim relief does not resolve the underlying dispute. It buys time for the substantive case to be heard.
To assess litigation and arbitration options in detail – including the enforcement of judgments obtained in Romanian proceedings – the firm's overview of litigation and arbitration in Romania provides a procedural guide for international clients.
Cross-border implications for European clients
Force majeure and hardship disputes in Romania frequently arise in a cross-border context. A German buyer, a Dutch distributor, an Austrian investor – each may find itself party to a Romanian-law contract where a Romanian supplier or partner invokes one of these doctrines. The cross-border dimension introduces several layers of complexity that purely domestic analysis tends to understate.
Choice of law. Not all contracts with Romanian parties are governed by Romanian law. Where the contract is governed by another EU member state's law – or by English law post-Brexit – the force majeure and hardship provisions of Romanian civil legislation do not automatically apply. The applicable law governs which doctrine is available and on what terms. Parties should verify the governing law clause before assuming that the Romanian Civil Code analysis is relevant to their situation.
Where Romanian law does apply, the Regulamentul Roma I (Rome I Regulation on the law applicable to contractual obligations) provides the EU-wide conflict-of-laws rules for determining this. Under Rome I, the parties' choice of law is generally respected. Where no choice has been made, the regulation directs courts to the law of the country of habitual residence of the party required to effect the characteristic performance. often. In supply contracts, the seller or supplier. This can result in Romanian law applying even where neither party anticipated it.
Enforcement of judgments. If a Romanian court adapts or terminates a contract under the hardship regime, the resulting judgment must be enforced. Within the EU, the Brussels I Regulation (recast) provides for mutual recognition and enforcement of civil and commercial judgments between member states. A Romanian judgment can therefore be enforced in Germany, France, or the Netherlands without re-examination of the merits. The practical consequence is that a Romanian court's exercise of its judicial adaptation power – rewriting a price term, for example – can be directly enforced against assets located elsewhere in the EU.
Interaction with insolvency proceedings. Where force majeure or hardship arises in the context of a counterparty that is also facing financial distress, the contractual and insolvency dimensions interact. Romanian insolvency legislation provides its own rules on the treatment of executory contracts. A contract that has been modified or terminated under hardship before insolvency proceedings commence is treated differently from one that remains in force at the time of insolvency. Parties with significant exposure to a Romanian counterparty should monitor both the contractual and the financial position simultaneously.
The civil law versus common law lens. A client accustomed to English common law will find the Romanian hardship doctrine unfamiliar. English contract law does not recognise hardship as a general doctrine. The doctrine of frustration in English law is narrower than force majeure in Romanian civil legislation and has no equivalent to impreviziune at all. A common law practitioner advising on a Romanian-law contract must therefore resist the instinct to apply familiar common law categories. The judicial power to adapt a contract – to rewrite its terms without the parties' consent – has no counterpart in English law and can produce outcomes that common law clients find counterintuitive. This is precisely the context where a dual-tradition perspective adds value.
For a comparative analysis of how similar doctrines operate in a neighbouring civil law jurisdiction. The firm's deep analysis of force majeure and hardship in Portugal offers a useful reference point for European clients managing multi-jurisdictional contract risk.
Self-assessment checklist and strategic outlook
Force majeure in Romania is applicable if:
- The event causing non-performance is external to the debtor's operations and control.
- The event was objectively unforeseeable at the time the contract was signed.
- Performance has become absolutely impossible – not merely more expensive or more difficult.
- The debtor has notified the creditor promptly and in documentary form.
- The contract does not allocate the risk of the event to the debtor expressly or by implication.
Hardship (impreviziune) in Romania is applicable if:
- Performance remains physically possible but has become excessively onerous.
- The change in circumstances occurred after the contract was concluded.
- The change was unforeseeable and the debtor did not assume that risk.
- The affected party has made a formal renegotiation request before approaching a court.
- The economic imbalance is sufficiently severe to satisfy the court's threshold for intervention.
Before initiating proceedings, verify:
- The governing law of the contract and whether Romanian civil legislation applies.
- Whether a contractual force majeure clause modifies or replaces the statutory regime.
- Whether notification deadlines under the contract or statute have been met.
- Whether renegotiation has been formally attempted and documented.
- Whether interim relief is needed to prevent enforcement while the substantive case proceeds.
Trigger points for switching strategy: If the counterparty's financial position deteriorates during a force majeure or hardship dispute, the matter may shift from a contract law claim to an insolvency proceeding. This transition is typically indicated by late payments on other obligations, asset disposals, or creditor pressure visible in public registries. When these indicators appear, the strategy must expand to address both the contractual and the insolvency dimension simultaneously.
Regulatory outlook. Romanian contract law is not currently under active legislative reform in the area of force majeure or hardship. However, the body of appellate and Supreme Court decisions is growing, and practitioners expect increasing consistency in the application of the unforeseeability and excessiveness thresholds over the next few years. EU-level developments in contract law – including ongoing discussions around greater harmonisation of frustration-equivalent doctrines – may eventually exert upward pressure on Romanian legislative policy. For now, the practical advice remains: document early, notify promptly, renegotiate formally, and litigate with realistic expectations about the court's discretion to adapt rather than terminate.
To discuss how the force majeure or hardship regime in Romania applies to your contractual position, contact us at info@ferrazwhitmore.com.
Frequently asked questions
Q: What is the difference between force majeure and hardship under Romanian contract law?
A: Force majeure in Romania requires an event that is external, unforeseeable, and renders performance absolutely impossible. Hardship – known as impreviziune – applies where performance remains possible but has become excessively onerous due to changed circumstances. Force majeure suspends or terminates the obligation. Hardship triggers a right to renegotiate or, failing that, judicial adaptation or termination of the contract.
Q: How long does a Romanian court typically take to resolve a hardship or force majeure dispute?
A: First-instance proceedings in Romania generally take between one and two years for commercial contract disputes. Appeals add a further one to two years. Where a party needs immediate relief. for example, suspension of payment obligations. an interim injunction filed alongside the statement of claim can provide temporary protection within weeks. Though this remedy is subject to strict conditions under Romanian civil procedure.
Q: Can a foreign company invoke force majeure in a Romanian-law contract?
A: Yes. A foreign party to a contract governed by Romanian law may invoke force majeure or hardship on the same terms as a Romanian entity. However, the burden of proof rests on the party invoking the doctrine. Engaging a lawyer in Romania with experience in commercial litigation is advisable early: notification deadlines and documentary requirements must be met promptly or the defence risks being waived.
About Ferraz & Whitmore
Ferraz & Whitmore is an international law firm based in Lisbon, advising business clients across 46 jurisdictions. Our team combines Portuguese civil law expertise with English common law tradition to deliver cross-border legal solutions in commercial litigation. Contract disputes. Additionally, cross-border enforcement. including force majeure and hardship matters in Romania and across Central and Eastern Europe. As a law firm in Romania and the wider EU with a dual-tradition background, we advise international entrepreneurs, institutional investors, and in-house legal teams who need results-oriented counsel across multiple legal systems. Our commercial disputes practice has supported clients before Romanian courts and international arbitral bodies. The firm's Lisbon base provides direct access to EU regulatory conditions, while our common law expertise supports enforcement strategies in English-speaking jurisdictions. To discuss your situation in Romania or across the region, contact us at info@ferrazwhitmore.com.
Disclaimer: This publication is provided for informational purposes only and does not constitute legal advice. The information herein should not be relied upon as a substitute for professional legal counsel tailored to your specific circumstances. Ferraz & Whitmore assumes no liability for actions taken or not taken based on the contents of this material. For advice regarding your particular situation, please contact info@ferrazwhitmore.com.