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In contract law, force majeure[1][2][3] (/ˌfɔːrs məˈʒɜːr/ FORSS mə-ZHUR; French: [fɔʁs maʒœʁ]) is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, epidemic, or sudden legal change prevents one or both parties from fulfilling their obligations under the contract. Force majeure often includes events described as an act of God, though such events remain legally distinct from the clause itself. In practice, most force majeure clauses do not entirely excuse a party's non-performance but suspend it for the duration of the force majeure.[2]
Force majeure is generally intended to include occurrences beyond the reasonable control of a party, and therefore would not cover:
- Any result of the negligence or malfeasance of a party, which has a materially adverse effect on the ability of such party to perform its obligations.[4]
- Any result of the usual and natural consequences of external forces. To illuminate this distinction, take the example of an outdoor public event abruptly called off:
- If the cause for cancellation is ordinary predictable rain, this is most probably not force majeure.
- If the cause is a flash flood that damages the venue or makes the event hazardous to attend, then this almost certainly is force majeure, other than where the venue was on a known flood plain or the area of the venue was known to be subject to torrential rain.[5]
- Some causes might be arguable borderline cases (for instance, if unusually heavy rain occurred, rendering the event significantly more difficult, but not impossible, to safely hold or attend); these must be assessed in light of the circumstances.
- Any circumstances that are specifically contemplated (included) in the contract—for example, if the contract for the outdoor event specifically permits or requires cancellation in the event of rain.
Under international law, it refers to an irresistible force or unforeseen event beyond the control of a state, making it materially impossible to fulfill an international obligation. Accordingly, it is related to the concept of a state of emergency.[6]
Force majeure in any given situation is controlled by the law governing the contract, rather than general concepts of force majeure. Contracts often specify what constitutes force majeure via a clause in the agreement. So, the liability is decided per contract and neither by statute nor principles of general law. The first step to assess whether—and how—force majeure applies to any particular contract is to ascertain the law of the country (state) which governs the contract.
- ^ (from French 'overwhelming force, superior force'
- ^ a b Principle of Force Majeure (including international references), Trans-Lex.org
- ^ Force Majeure, Merriam-Webster
- ^ Public-Private Partnership in Infrastructure Resource Center (October 2012). "Force majeure definition and checklist". World Bank.
- ^ Trade and Transport Inc v Iino Kaiun Kasiha Ltd [1973] 1 WLR 210 at 224 to 227; cf Channel Island Ferries Ltd v Sealink United Kingdom Ltd [1988] 1 Lloyd's Reports 323
- ^ ""Force majeure" and "Fortuitous event" as circumstances precluding wrongfulness: Survey of State practice, international judicial decisions and doctrine – study prepared by the Secretariat" (PDF). Yearbook of the International Law Commission. 1978. Retrieved 16 September 2015.