In case of force majeure, payment shall be made according to the agreement in the contract (if any) [3] .
However, the above provision does not mention termination of contract due to force majeure events.
However, our country's current law has a provision on termination of the project contract due to force majeure: Clause 1, Article 21 of Decree No. 108/2009/ND-CP dated November 27, 2009 on investment in the form of Build-Operate-Transfer Contracts, Build-Transfer-Operate Contracts, and Build-Transfer Contracts stipulates: "1. The project contract terminates due to the end of the agreed term or terminates before the term due to a breach by one of the parties without effective remedial measures, due to force majeure or other cases specified in the project contract" [4]. This provision considers force majeure as a reason for termination of the contract, including the Project Contract.
It can be seen that the problem of changing circumstances making contract performance more difficult and increasing contract performance costs is not a rare situation in Vietnamese legal practice. In practice , there are many disputes arising in legal practice in Vietnam, but due to the lack of regulations on this issue in positive law, it has caused many difficulties for the parties involved in applying the law. "The 2005 Civil Code has not provided sufficient regulations to handle cases where it is impossible to perform a contract and exceptions to the principle of strict contract performance" [5]. The absence of such regulations in current Vietnamese law has shown the overly cautious (if not too slow) reaction of Vietnamese legislators, making this type of dispute have no legal basis for satisfactory resolution. That is also the reason why the court's decision on this issue is still inconsistent. Assoc. Prof. Dr. Pham Duy
Nghia is right when he says that the above shortcomings can be seen as one of the manifestations of the "backwardness" of our country's contract law because it "does not meet the needs of risk management today" [20, p. 40].
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Vietnamese law needs to study and apply the provisions of foreign law on termination of civil contracts due to force majeure events to protect the rights of the subjects. Clause 1, Article 21 of Decree No. 108/2009/ND-CP can be applied more widely. When performing a contract, if one party encounters difficulties due to force majeure events, it can choose one of the following ways: first, request to renegotiate the contract, if no agreement can be reached, the contract will be renegotiated; second, choose the contract renegotiated immediately.
2.1.4. Regulations on notice in unilateral termination of civil contract performance
Notice is the expression of the will of the party entitled to terminate the contract. In the case of normal notice, the termination of the contract only occurs after the expiry of the notice period (15 days, the last day of the month, …); extraordinary notice (with an immediate effect) can usually be applied only as a sanction to the other party. Usually notice is the typical opportunity to terminate the contract concluded for an indefinite period of time, without giving any reason, however, contracts concluded with a time limit can usually not be terminated with a normal notice only with an extraordinary notice, and the reason must be provided. The UNIDROIT Principles of Contracts for International Commerce provide that: " 1. When required, notice may be given in any manner appropriate to the circumstances… 3. A notice reaches the recipient when the latter is notified orally or when the notice is delivered to the other party's place of business or address of correspondence" [21, Article 1.10] . Thus, notice is expressed in two basic forms: oral (direct notice) or notice delivered to the other party's place of business or address of correspondence (indirect notice). Why is notice required? Because at the time
The contract is valid for the contracting parties, but at the time of termination, the contract is no longer valid. The time of termination depends on the time the party whose contract is terminated receives the notice.
Clause 2, Article 426 of the 2005 Civil Code stipulates: "The party unilaterally terminating the performance of the contract must immediately notify the other party of the termination of the contract. If the failure to notify causes damage, compensation must be paid" [27] . Thus, the party with the right to unilaterally terminate the contract has the obligation to notify the other party of the termination of the contract. The very important issue is the time of notification, which is not clearly stipulated in the 2005 Civil Code. When the obligated party delays in performing its obligations or fails to perform its obligations or improperly performs its obligations, is the party with the right to unilaterally terminate the contract required to notify the other party of the breach of obligations? According to the above provision, the party with the right to unilaterally terminate the contract will lose this right if it fails to notify the other party within a reasonable period of time. Therefore, this notification is considered an obligation of the party with the right to unilaterally terminate the contract. Furthermore, if the entitled party does not notify the termination of the contract and they do not perform their obligations to the other party, leading to damage, they must compensate for it. In addition, depending on each case and each type of contract, the entitled party must not only immediately notify the other party of the termination of the contract but also notify a reasonable time in advance. The 2005 Civil Code has the following provisions on the time of notification of the termination of the contract:
* Clause 3, Article 498 stipulates: " The party unilaterally terminating the performance of the house lease contract must notify the other party one month in advance, unless otherwise agreed " [27]. Thus, if the parties do not have another agreement, the party with the right to terminate the house lease contract must notify the other party one month in advance. This provision is only true in the case where the party leasing the house to terminate the house must give notice to the other party one month in advance. This provision is only true in the case where the party leasing the house to terminate the house must give notice to the tenant to know and prepare a new place to live; however, in the case of the party renting the house to terminate the house, giving notice is unreasonable, because they are allowed to terminate the contract when the purpose of the lease, their rights and interests are clearly not guaranteed ( the tenant has the right to
The lessor shall terminate the lease when the lessor commits one of the following acts: a) Failure to repair the house when the quality of the house has seriously declined; b) Unreasonably increasing the rent; c) The right to use the house is restricted due to the interests of a third party ). Therefore, the lessee only needs to issue a sudden notice with immediate effect (effective immediately) as a sanction against the other party.
* Clause 1, Article 510 stipulates: " In case one party unilaterally terminates the performance of the contract, it must notify the other party in advance a reasonable time; if the contract is seasonal or cycle-based, the notice period must be consistent with the season or cycle of exploitation " [27]. Similarly, Clause 1, Article 525 stipulates that the service hirer "... must notify the service provider in advance a reasonable time " [27], Clause 1, Article 556 stipulates that the parties to a processing contract when having the right to perform the contract "... must notify the other party in advance a reasonable time" and Clause 1, Article 588 stipulates: "... if the authorization is without remuneration, the authorizing party may terminate the contract at any time, but must notify the authorized party in advance a reasonable time" [27]. There are two issues raised through consideration of the above provisions: first, how is "reasonable time" determined; Second , within the period of notice of termination of the contract, will the parties continue to perform their obligations?
+ The lessor must give a reasonable notice in advance, that is, set a deadline for the contract to be terminated. This reasonable period can be agreed upon by the parties in the contract, or according to a legal provision or can apply precedents and customs to each specific type of contract. Ultimately, determining the basis for calculating a reasonable period must be based on the nature of each contract. For example, according to Clause 1, Article 499 of the 2005 Civil Code, " The house lease contract terminates when the lease term expires. If the contract does not specify the lease term, the contract terminates after six months from the date the lessor notifies the lessee of the demand for the house " [27]. In the absence of a breach of contract by the lessee, the lessor may only terminate the contract by giving the lessee six months' notice. So when there is a breach
In case of a breach of contract by the lessee, the lessor only has to give notice in advance, which is certainly less than six months. In essence, the party entitled to a notice period is not required to give notice when there is a breach by the other party and this breach cannot be remedied if the contract is continued, so setting a notice period is unnecessary. Only in some special cases that seriously affect the life of the breaching party, the lessor must give notice, such as: house lease contracts, lease contracts, etc. The 2005 Civil Code also does not stipulate a notice period for some types of contracts such as: property lease contracts, service lease contracts in cases where the service provider seriously violates its obligations, passenger transport contracts, processing contracts with a breach of obligations by the processing party, insurance contracts, land use rights lease contracts. Thus, in these cases, the party with the right to request the issuance of a notice only has to issue an extraordinary notice, also known as a sudden notice, which is effective immediately.
+ During the notice period of contract termination, will the parties continue to perform their contractual obligations? With the DPCDHĐ, when there is a violation by the partner, it only occurs when there is a contract violation by the partner, this violation cannot be remedied and the contract cannot be continued, so the party with related rights and interests, if discovering a serious contract violation by the partner, has the right to request immediate termination of the violation. Clause 2, Article 706 of the 2005 Civil Code on the rights of the lessor of land use rights stipulates that " ... if the lessee does not immediately terminate the violation, the lessor has the right to unilaterally terminate the contract, request the lessee to return the leased land and compensate for damages" [27] . If the lessee seriously violates the user's obligations, the lessor has the right to request the violating party to immediately stop the violation. If the violation is not stopped, the lessor has the right to terminate the contract. This is also stated by the author in the characteristics section of chapter 1, that is, the contract must be terminated to protect the rights and interests of the entitled party. Therefore, in the case of
If there is a breach by the counterparty, within the period of notice of the termination of the contract, the breaching party may not continue to perform its obligations, because continuing to perform its obligations will mean continuing to breach the contract. Furthermore, as analyzed in the above section, in this case of termination of the contract, the party with the right to terminate the contract usually only needs to make an emergency notice to the breaching party, so when the breaching party is certain, it is certain that it cannot continue to perform its contractual obligations. For example, in a property lease contract, if the lessee uses the property for the wrong purpose, after this party receives notice of the termination of the contract, if this party continues to perform the contract, it means continuing to use the leased property for the wrong purpose, which may lead to destruction or reduction in the value of the property, so the lessee must immediately terminate the performance of the contract. As for housing lease and contract of lease, due to the serious impact on the life of the lessee, it is necessary to notify the termination of the contract in advance a reasonable time. Therefore, during this time, the violating party can still continue to perform the contract but only to a certain extent, and must commit to not continue to violate the contract during the period from the time of receiving the notice of termination of the contract until the end of this period.
With the termination of the contract, when there is no breach by the counterparty, due to the interests of the party with the right to terminate the contract or the party performing the obligation falling into difficult circumstances and unable to continue performing the contract, the counterparty does not breach the contract, so within the notice period for termination of the contract, the parties must still perform their obligations and proceed to complete and liquidate the contract.
2.1.5. Regulations on legal consequences of unilateral termination of civil contract performance
According to Clause 3, Article 426 of the 2005 Civil Code: A civil contract that is unilaterally terminated "terminates from the time the other party receives the notice of termination", from then on "... the parties do not have to continue performing the contract. The party that has performed
The obligation has the right to request the other party to pay" and Clause 4 of the above Article stipulates: "... The party at fault in the unilateral termination of the contract must compensate for damages" [27]. Compared with the provisions of Article 420 of the 1995 Civil Code, the provisions of Article 426 of the 2005 Civil Code have added Clause 4 above and the compensation for damages has been included in the general provisions on contract termination. According to this provision, the party at fault in the contract being terminated must compensate for damages. Thus, normally, if a party terminates the contract because the other party violates the obligations agreed upon in the contract, the party with the right to compensate for damages is not the one who violates the contract but the party at fault. In the case where a party terminates the contract without the fault of the partner but because the continued performance of the contract is "not beneficial to them", which party must compensate for damages? "If a party terminates the contract because they realize that the contract is not beneficial to them, according to the provisions of law, they have the right to The termination party must compensate for damages if the termination causes damage to the other party" [40, p. 274]. This viewpoint is reasonable because it protects the rights of the party whose contract is terminated when this party is not at fault. Therefore, it is necessary to add a provision: If one party terminates the contract when the other party is not at fault and the termination causes damage to the other party, the termination party must compensate for damages .
The phrase "request for compensation for damages" is mentioned quite a lot in the provisions on specialized compensation in the 2005 Civil Code, but what damages must be compensated, how much compensation is and how it is determined are not specifically regulated. Normally, when there is a breach of contract, it means that the breaching party has caused a damage to the other party, so before the other party decides to compensate for damages, a damage has occurred and been determined. Damages to be compensated here may include damages caused by the breach as well as damages related to the process of exercising the right to compensate for damages. The UNIDROIT Principles of International Commercial Contracts stipulate: "damages include the losses that this party has suffered and the benefits lost, taking into account any benefits to the entitled party from a cost or loss avoided. Damages may be non-
monetary and arising especially from physical or mental pain" [21, Article 7.4.2] . However, damages must be real, including future damages, which can only be compensated when they are established with a reasonable degree of certainty, loss of opportunity can be compensated within the scope of the possibility of realization of the opportunity, for example, the party receiving the processing of the DPCDHĐ may lose the business opportunity of the ordering party. When it is not possible to establish with a sufficient degree of certainty the amount of compensation, the damage is determined according to the court. The party entitled to the DPCDHĐ is only responsible for damages that it has foreseen or could have reasonably foreseen, at the time of concluding the contract as a possible consequence of not performing the contract as agreed. In addition, damages are also determined according to market prices, the party entitled to claim compensation for the difference between the agreed price The original contract price and the market price at the time of the performance of the contract if a market price exists for the agreed performance, are similar to the claim for additional damages. The market price is the price generally paid for the goods or services supplied under comparable circumstances at the place where performance should have been performed or, where the market price at this place cannot be determined, the market price at another place which is considered reasonable to determine.
According to the author, the damage here is determined as the actual damage, based on the value of the contract that the two parties actually performed, not on the value of the entire contract that the two parties signed, because during the performance of the contract, there may be risks, price fluctuations, the subject of the contract is a specific item that no longer exists... Therefore, determining the level of damage must be authentic to the part of the contract that has been performed and predicting the possibility of performing the contract in the future to ensure the rights and interests of the parties in the contract.
Compensation is necessary for the party being compensated, because the damage can be material, mental or both due to the contract not being performed.