This article substantiates the legal nature of force majeure and hardship as independent legal regimes for responding to changes affecting the performance of contractual obligations. The relevance of the study stems from the absence of a unified approach to identifying the decisive criterion for selecting the appropriate legal regime to address challenges arising during contract performance. The purpose of this publication is to develop a conceptual framework for distinguishing force majeure from hardship as independent legal response regimes based on the criterion of the subject matter of their legal assessment, as well as to formulate a practical algorithm for their application. The object of the study comprises legal relations arising from the transformation of the conditions for performing contractual obligations under the influence of unforeseen external circumstances. The subject of the study encompasses the theoretical and legal foundations, regulatory framework, law enforcement practice, and contractual mechanisms governing the distinction and application of force majeure and hardship as legal regimes for responding to changes in the conditions of contractual performance. The study demonstrates that the choice of the appropriate legal response regime should be determined not by the nature of the external event itself but by the subject matter of its legal assessment and by the character of its impact on the performance of a particular contractual obligation. It further establishes the possibility of the dynamic (sequential) application of both regimes to the consequences of the same external factor where the nature of its impact evolves over time. A structured legal assessment algorithm is proposed, enabling a clear distinction between the subject matter of legal assessment and the subject matter of proof in both judicial and contractual practice. The practical significance of the study lies in providing guidance for legal practitioners in determining the appropriate standard of proof depending on the selected legal response regime. The proposed algorithm also enables business entities to adapt contractual obligations more effectively in the event of procedural or logistical disruptions, including through the incorporation of specific contractual provisions such as hardship clauses. This approach reduces legal uncertainty during contractual negotiations and ensures adequate protection of the parties’ rights where the contractual equilibrium has been fundamentally disturbed.

Journal articles

1. Savanets L, Poperechna H, ‘The Doctrine of Hardship in Contract Law: Comparative Study’ [2022] 2(30) Aktualni problemy pravoznavstva 126–141 https://doi.org/10.35774/ app2022.02.126.

2. Boboshko O, ‘Osoblyvosti istotnoi zminy obstavyn pry rozirvanni dohovoru’ [2018] 2 Visnyk Chernivetskoho fakultetu Natsionalnoho universytetu “Odeska yurydychna akademiia” 44 (in Ukrainian).

3. Karnaukh B, ‘Svitova finansova kryza, pandemiia koronavirusu, viina ta shcho ishche (ne) vvazhaietsia istotnoiu zminoiu obstavyn (stattia 652 TsK Ukrainy)’ [2024] 3 Zovnishnia torhivlia: ekonomika, finansy, pravo 46 https://doi.org/10.31617/3.2024(134)05 (in Ukrainian).