Force Majeure Clauses

Force Majeure clauses are a common but often overlooked part of most corporate terms.

A force majeure event refers to the occurrence of an event which is outside the reasonable control of a party and which prevents that party from performing its obligations under a contract.

Force Majeure Provisions

Force majeure provisions are express terms and will not be implied into contracts governed by English law.

English law has no real concept of force majeure as such. There is a limited doctrine of contractual frustration where an individual or party’s ability to claim relief for a force majeure event depends upon the terms of the contract, and the force majeure provision in particular.

A party affected by such an event of force majeure are defined as being relieved from performing the contract obligation for the duration and to the extent affected and may be entitled to compensation.

As with all matters dependent upon the terms of and individual contract, a force majeure provision must be considered on its precise terms and in its specific context. This is why you need to consult a solicitor with experience in this area as there is not overall ‘yes’ or ‘no’ answers to whether force majeure provisions are generally enforceable.

Common consequences of a force majeure event include:

suspension of contractual obligations;
non-liability;
extensions of time to fulfill obligations;
renegotiation of terms;
obligation to mitigate losses; and
the right to terminate the contract.

To benefit from those effects the party looking to be excused must have been ready and willing to perform the contract, if it had not been for the force majeure event.

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