Define force majeure

The contract force majeure provision protects against unanticipated occurrences that disrupt the expected course of events and prohibit participants from performing their commitments. These provisions usually cover hurricanes, tornadoes, earthquakes, armed warfare, and artificial illnesses.

Force comprehension Majeure

French force majeure implies “greater force.” This is similar to the notion of an act of God when no party is responsible for an occurrence like a storm or tornado. Force majeure also includes human activities like war.

Force majeure occurrences are usually unforeseen, external to the contract parties, and unavoidable. Jurisdictions define and apply these terms differently.

French civil law originated as force majeure, and many Napoleonic Code-based countries adopted it. Standard legal systems like those in the US and UK permit force majeure provisions but must specify the circumstances that trigger them.

This contract excludes natural calamities and war from accountability.

PSC vs. Force Majeure

“Pacta sunt servanda” (Latin for “agreements must be kept”) is a civil, international, and common law principle that usually contrasts with force majeure. Proving unexpected events is difficult by design, making contractual obligations impossible to avoid.

People are increasingly aware of global natural risks, such as solar flares, asteroids, pandemics, and supervolcanoes. Developers are creating new human dangers, including cyber, nuclear, and biological warfare. They have questioned the legal foreseeableness.

Human agency is becoming more apparent in exogenous phenomena like climatic and earthquake catastrophes. Litigation is investigating whether drilling and development projects caused the natural calamities that left them unusable. Thus, force majeure conceptions are changing.

Force majeure example

An avalanche destroys a supplier’s French Alps plant, causing shipment delays and prompting the client to file a lawsuit. The provider may claim force majeure since the avalanche was unexpected, external, and unavoidable under French law.

The court may find the seller liable for damages unless the contract excludes avalanches. French courts consider an occurrence predictable since it happened 50 years earlier. War in a conflict-ridden zone, financial controls in a faltering economy, and floods in regularly impacted areas are also possible.

A replay of a natural or other calamity may be expected even many years later.

Special Force Majeure Considerations

To define force majeure, the International Chamber of Commerce applies the “impracticability” standard, meaning it would be unreasonable and costly to fulfill the contract terms.

The cause must be exogenous, unforeseen, and unavoidable. These requirements are challenging to show, and most force majeure defenses fail in international tribunals.

Contracts with apparent force majeure definitions—ideally ones that address local threats—withstand examination in any country. The notion can be limited even in civil law regimes.

Does COVID-19 constitute force majeure?

Yes, force majeure would apply if COVID-19 prevented a party from fulfilling its contract. The word “impossible” should be highlighted. If the party can fulfill its duty, it is not force majeure, even if COVID-19 makes it more complex or expensive.

Remember that COVID-19 is no longer unpredictable. After several years, precautions have been taken to stop the virus from spreading. Contracting parties must take all measures to reduce COVID-19. Force majeure provisions in contracts signed after 2020 may also state that the COVID-19 pandemic does not apply.

What are the three force majeure elements?

To use a force majeure clause, something unexpected, outside of the parties to the contract, and wrong enough to keep one party from fulfilling its obligations must happen.

Examples of force majeure

War, terrorist attacks, pandemics, and “act of God” natural disasters like floods, earthquakes, and hurricanes might trigger a force majeure clause.

Bottom Line

Force majeure clauses make theoretical sense. They help parties manage risk and protect themselves against unexpected events.

The primary issue is that these clauses favor prominent players due to their transparency. These provisions allow large insurance companies to avoid their duties. If an ordinary Joe benefits from a force majeure exemption, they may not have the financial resources to show it.

Conclusion

• Force majeure clauses let parties avoid responsibility for unplanned and unavoidable events that disrupt activities and keep them from fulfilling their duties.
• These provisions usually include natural and human-caused calamities.
• Three tests decide whether a force majeure defense applies in various jurisdictions: The incident must be unexpected, external, and compelling.
• The growing understanding of pandemics, asteroids, supervolcanoes, cyber dangers, and nuclear weapons has generated legal questions concerning what is and is not predictable.
• Force majeure contrasts with “pacta sunt servanda,” an international law norm that prohibits breaking agreements.