Description of the legal term Force Majeure:
Force majeure is a legal concept originating from French civil law but widely recognized in Common Law jurisdictions, including the legal system of the United Kingdom. It refers to unforeseeable circumstances that prevent someone from fulfilling a contract. The doctrine of force majeure aims to excuse a party from liability if some unforeseen event beyond the control of that party prevents it from performing its obligations under a contract.
This concept is typically invoked when natural and unavoidable catastrophes that interrupt the expected course of events and prevent participants from fulfilling obligations, occur. Such events can include acts of God such as floods, earthquakes, hurricanes, or volcanic eruptions, but can also encompass human actions such as strikes, terrorist attacks, or wars. It is important to note that not every unexpected or uncontrollable event will qualify as force majeure – it must be an event that cannot be anticipated or controlled, and it must make the fulfillment of contractual obligations impossible, not merely difficult or more expensive.
Courts in the UK will usually interpret force majeure clauses strictly, looking closely at the wording of the contract itself. They typically do not imply such clauses into contracts; it needs to be expressly included by the parties. Thus, much depends on the precise language parties use in the contract to describe what will count as force majeure and the effects it will have on their obligations.
For a party to successfully claim this defense, they are often required to prove that there were no reasonable steps that could have been taken to avoid or mitigate the event or its consequences, that the event was outside their control, and that it has directly affected their ability to perform the contract. If the party claiming force majeure fails to take reasonable steps to mitigate the impact of a force majeure event, they may not be able to rely on the clause.
In many cases, the inclusion of a force majeure clause in the contract will alleviate the not-at-fault party from performing their contractual duties or give them the right to suspend performance or to terminate the contract if the event continues for a specified period. It is also crucial for contracting parties to follow any contractual procedures identified in the force majeure clause, such as notice requirements.
Legal context in which the term Force Majeure may be used:
Example 1:
In 2020, the COVID-19 pandemic became a widely cited example of force majeure, as governments around the world imposed lockdowns and travel restrictions. For instance, a British company contracted to supply goods manufactured in China to a UK retailer could not fulfill the contract due to the Chinese government’s imposition of factory shutdowns. In this scenario, the British company might invoke the force majeure clause within their contract to avoid penalties for non-delivery, asserting that the pandemic and the governmental response were unforeseeable and beyond their control, thus rendering performance impossible.
Example 2:
Imagine a scenario where a major hurricane hits the coast of England, severely disrupting all modes of transport and causing widespread destruction. A British construction firm that is unable to safely bring its workers to the site or receive materials due to the hurricane could argue that the storm constitutes a force majeure event. Provided they have a well-drafted clause in their contracts, they may not be held liable for the resulting delays or inability to complete a project on time.
Understanding the complexity and the significant implications of force majeure is imperative for legal practitioners and contracting parties alike. It ensures that they can effectively plan for, and respond to, extraordinary events that lie beyond the realm of routine commercial risk management. Drafting comprehensive and clear force majeure clauses, and knowing how to handle such claims, is critical to minimising the potential for disputes and economic loss when such unanticipated events occur. As such, this term occupies a unique and indispensable role within the fabric of British jurisprudence.
