Recent developments In Force Majeure

Force majeure clauses are nearly always included in commercial contracts, particularly in the infrastructure, energy and construction sectors. However, how many parties can honestly say they pay these clauses any attention until they attempt to rely upon them? Ben Smith suggests that very few parties consider such clauses and as a result in the current political and social climate it seems a suitable time to reconsider them.


In English law, there is no defined meaning or legal doctrine of force majeure.

Rather, it is generally used to describe those contractual terms which provide relief to a party from performance of the contract following the occurrence of certain events. The underlying principle of force majeure is that the occurrence of certain events is outside a party's control and therefore that party is either excused from performing all or part of its obligations, entitled to suspend performance of all or part of its obligations, or entitled to cancel the contract (although this is rare).

In that sense, force majeure can be differentiated from the legal doctrine of Frustration which applies when an event occurs that makes it impossible to fulfil the contract. If such an event occurs the parties are automatically released from their obligations and the contract discharged. However, force majeure events rarely result in the discharge or cancellation of the contract; instead the contract usually sets out the result of a force majeure event.

A force majeure clause is also not regarded as an exemption or exception clause, even though the practical effect of a force majeure clause may be to relieve a party of liability for failure to perform, as exception/exemption clauses are typically concerned with relief from damages due to a particular event (a secondary obligation) rather than relief from a party's primary obligation to perform the contract.

An example of a force majeure clause is:

"If either Party is rendered wholly or partly unable to perform its obligations under the Contract because of: a) an act of God, fire, flood, drought, earthquake, windstorm or other natural disaster; (b) an act of any sovereign including war (c) acts of terrorism; (d) civil emergency (whether an emergency be declared or not); (e) fire or explosion (other than, in each case, one caused by breach of contract by (f) adverse weather conditions; (g) nationalisation, requisition, destruction or damage to property by or under the order of any government or public or local authority; (h) embargo, blockade, imposition of sanctions or breaking off of diplomatic relations or similar actions; (i) radioactive, nuclear, chemical or biological contamination or (j) labour dispute including, but not limited to, strikes, industrial action, lockouts or boycott; it shall not be liable for its failure to perform its obligations affected by said event."


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