BELGIUM | OLIVIER DUGARDYN AND CARLA GHISLAIN 89 Indeed, as mentioned above, one of the conditions for the application of force majeure is the absolute impossibility of performance of the obligation. According to the recent jurisprudence, this impossibility must be assessed “in a reasonable and humane manner, no longer in abstracto but according to the economy of the obligation in question and the degree of diligence incumbent on the person whose liability is sought. The measure of force majeure is now based on the “normal real impossibility” of performance, and not on the "absolute theoretical impossibility”.” Therefore, impossibility must be assessed in a reasonable manner and according to what the parties intended. Thus, the definitive or temporary impossibility of force majeure must always be assessed in concreto, taking into account the specificities of each case. Nevertheless, in the hotel sector, when it comes to the reservation of a room for vacation or for business, we find it difficult to consider force majeure as temporary when it postpones the trip by several months. In this case, the traveller may find himself in a very different situation from the one he was in when he booked his hotel. Indeed, it seems hardly justifiable to consider that the execution of the reservation is still possible months later, when the traveller is no longer in the same circumstances as at the time of the reservation. If the traveller had booked a summer holiday, for which he had expressly asked for time off, it is difficult to conceive of moving the booking to the middle of winter, when the traveller no longer has the opportunity to take such a time off. The same reasoning can be applied when the traveller had booked a room expressly for a business appointment. To consider force majeure as temporary and to impose the performance of the obligation months later when the appointment is no longer necessary seems abusive. This could give rise to an abuse of rights on the part of the hotelier who requires the traveller to postpone his reservation until the travel ban ends, on the pretext that the force majeure is only temporary. Besides, even in the case of temporary impossibility, doctrine and case-law agree that if the impossibility continues in such a way that performance would no longer be useful for the parties, then the temporary impossibility is assimilated to a definitive impossibility. Again, a case-by-case analysis is necessary.
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