In this article
What is force majeure?
Our contract solicitors in Brighton get asked this a lot. Force majeure is the name given to unforeseen circumstances in contracts, which sounds quite simple, but comes with its own complications.
If a contract has a force majeure clause, it should deal with how the parties’ responsibilities are affected by an event, such as the coronavirus, that may affect one of the party’s capability to perform the contract.
Most force majeure clauses vary, so the clause would need to be considered carefully by one of our contract solicitors as to your specific contractual obligations. Set out below are the factors we would normally consider:
- Under the current circumstances, attention would be given to the coronavirus epidemic and specifically if it is covered as a force majeure event in any relevant contract. If it is covered, then we would have to consider other necessities that need to be fulfilled to constitute force majeure.
- On the assumption that the coronavirus epidemic is not covered in your contract as a force majeure event, our contract solicitors can advise if it is the type of event that would fall under a general force majeure wording. We can further advise if there has been a government decision or administrative case stopping performance that meets some political interference. This wording is usually included in a force majeure clause but would have to be checked carefully.
- We would then look at the contract to see if it excludes any events that could have been reasonably avoided or overcome. Recently, some writers have suggested that this could require comparison with the actions taken after the 2003 SARS outbreak. The word “reasonably” must be considered in an objective way.
- Causation must be established. A party seeking to rely on a force majeure clause in a contract must usually establish that the force majeure event has stopped or delayed performance of the contract. This will be a factual question; however, it will also turn on the exact wording of the force majeure clause.
- We then need to think about any mitigating duties that apply. This is because a party claiming force majeure relief is under a duty to show that it has taken ‘reasonable steps’ to alleviate and evade the effects of the force majeure event.