BELGIUM | OLIVIER DUGARDYN AND CARLA GHISLAIN 87 6.1. Notion of Force Majeure The notion of force majeure is not defined by the law. This principle evolves through Belgian case-law and doctrine, which considers that “force majeure” can be defined as “an event of an insurmountable and, according to some, unforeseeable nature, independent of any fault of the debtor, which prevents the latter to perform its obligations or to comply with the standards exclusive of fault of fault, while remaining within the limits of the diligence that can be expected of expected of him”. In summary, force majeure refers to an event: occurring after the conclusion of the contract, which makes it impossible for the debtor to perform his obligation, independently of any fault of the latter. Thus, force majeure can be defined otherwise as the impossibility for the debtor to perform his obligation, which is not attributable to him. Various criteria such as unpredictability, irresistibility and inevitability, and exteriority are invoked in doctrine and case-law to qualify the exonerating cause. The condition of unpredictability is much debated in the doctrine but it seems that the Court of Cassation is less indecisive since it reaffirmed that unpredictability is a condition of force majeure in a recent decision9. However, there is a growing consensus in current doctrine that these elements are not, strictly speaking, conditions in their own right of the concept, but serve to clarify and concretise the two main requirements of impossibility of performance, on the one hand, and non-accountability, on the other. 6.2. COVID-19 and Force Majeure How should the notion of force majeure, which allows travellers to cancel their booking free of charge in the context of the Coronavirus, be interpreted by hoteliers? Let us take the situation of a cancellation by the client because of a travel ban in its country. In our view, a major distinction must be made depending on when the reservation was made. 9 Cass., 19 December 2017, Pas., 2017, 2475
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