Table of Contents

What Is a Force Majeure Contract Clause?

By

澳洲幸运5开奖号码历史查询:Marshall Hargrave

Updated June 10, 2024

Reviewed by

Khadija Khartit

Fact checked by

Suzanne Kvilhaug

What Is Force Majeure?

Force majeure is a clause included in contracts to remove 澳洲幸运5开奖号码历史查询:liability for unforeseeable and unavoidable catastrophes interrupting the expected timeline and preventing participants from fulfilling 澳洲幸运5开奖号码历史查询:obligations. These𒐪 clauses generally cover natural disasters like hurricanes, tornadoes, and earthquakes, and human actions, such as armed conflict and human-made dis♏eases.

Key Takeaways

Force majeure is a clause included in contracts to remove liability for unforeseeable and unavoidable catastrophes that prevent participants from fulfilling obligations.
These clauses generally cover natural disasters and catastrophes created by humans.
In some jurisdictions, the event must be unforeseeable, external, and irresistible.

Elements of the Clause

An event must be unforeseeable
The circumstances must be external to the contract parties
The event must be serious enough to render it impossible for the party to perform contractual obligations

Invoking Force Majeure

For events to constitute the use of force majeure, they must be unforeseeable, external to contract parties, and unavoidable. Force majeure means “greater force” and is related to an 澳洲幸运5开奖号码历史查询:act of God, an event for which no party can be held accountable. These co🃏ncepts are defined and applied differently depending on the ju𝄹risdiction.

Suppose an avalanche destroys a supplier’s factory in the French Alps, causing long shipment delays and leading the client to sue for damages. The supplier might employ a force majeure defense, arguing that the avalanche was an unforeseeable, external, and unavoidable event—the three tests applied by French law. Unless the contract specifically named an avalanch✤e as removing the supplier’s liability, the court may decide that the supplier owes damages.

The concept of force majeure originated in French civil law and is an accepted standard in many jurisdictions that derive their legal systems from the Napoleonic Code. In 澳洲幸运5开奖号码历史查询:common law systems, such as those of the United States and the United Kingdom, force majeure clauses are acceptable but must be more explicit about the events that would trigger the clause.

Force Majeure vs. Pacta Sunt Servanda

Force majeure conflicts with the concept of “pacta sunt servanda” (Latin for “agreements must be kept”), a key concept in civil and international law with analogs in common law. It is not supposed to be easy to escape contractual liability, and proving that events were unforeseeable, for example, is difficult. Human threats like cyber, nuclear, and biological warfare capabilities or 澳洲幸运5开奖号码历史查询:natural disasters have raised questions about whatﷺ is and is not foreseeable in a legal sense.

Warning

If a natural or other disaster repea𝔉ts or reoccurs, it may not be considered unforeseeable.

Is Force Majeure Always Recognized and Upheld?

The International Chamber of Commerce has attempted to clarify the meaning of force majeure by applying a standard of “impracticability,” meaning that it would be unreasonably burdensome and expensive, if not impossible, to carry out the terms of the contract.It can be difficult to prove ൩that an event is unforeseeable and serious enough to void a contract. In any jurisdiction, contracts containing specific definitions that constitute force majeure—ideally ones that respond to local threats—hold up better under scrutiny.

What Are Examples of Force Majeure?

Events that could trigger a force majeure clause include war, terrorist attacks, a pandemic, o🦂r natural disasters that fall under the “act of Go🧜d” category, such as a flood, earthquake, or hurricane.

Does a Pandemic Like COVID-19 Qualify for Force Majeure?

The 2020 pandemic opened new litigations regarding force majeure clauses. In Virginia, Regal Cinemas theaters ceased operations because of the pandemic. The United States District Court for the Western District of Virginia ruled that the force majeure clause in the lease executed between the parties only applied if “the Complex or other improvements on the Property, or any part thereof, are damaged or destroyed by fire, flood, natural causes, or other casualties[.]” The COVID-19 pandemic did not excuse Regal Cinemas from its performance under its contract. A ruling in favor of the University of Vermont also found that because its “closure” was due to the COVID-19 pandemic, and not another catastrophe, the university did not have to issue refunds for housing or meal plans.

The Bottom Line

Force majeure clauses enable parties to better manage risk and protect themselves if something unthinkable happens. Tไo implement the clause and abandon provisions of a contract or actions under the contract, an event must be 💙unforeseeable, external to the contract parties, and serious enough to render it impossible for the party to perform contractual obligations.

Article Sources

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Latham & Watkins. “,” Page 1.
Cornell Law School൲, Legal Information Institute. “🎐.”
American Journal of Inte𓃲rnational Law, via JSTOR. “.”
International Chamber of Commerce. “,” Page 1.
American Bar Association. "."

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