Product Code Database
In contract law, force majeure( Force Majeure, Merriam-Webster ( ; ) is a common clause in contracts which essentially frees both parties from Legal 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. Principle of Force Majeure (including international references), Trans-Lex.org
Force majeure is generally intended to include occurrences beyond the reasonable control of a party, and therefore would not cover:
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.
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.
A force majeure may also be the overpowering force itself, which prevents the fulfillment of a contract. In that instance, it is actually the impossibility or impracticability defenses.
In the military, "force majeure" has a slightly different meaning. It refers to an event, either external or internal, that happens to a vessel or aircraft that allows it to enter normally restricted areas without penalty. An example would be the Hainan Island incident where a U.S. Navy aircraft landed at a Chinese military airbase after a collision with a Chinese fighter in April 2001. Under the principle of force majeure, the aircraft was allowed to land without interference. Similarly, the 2023 Chinese balloon incident in which a Chinese surveillance balloon was discovered in US air space, the Chinese government stated that this "was entirely an accident caused by force majeure".
The importance of the force majeure clause in a contract, particularly one of any length in time, cannot be overstated as it relieves a party from an obligation under the contract (or suspends that obligation). What is permitted to be a force majeure event or circumstance can be the source of much controversy in the negotiation of a contract and a party should generally resist any attempt by the other party to include something that should, fundamentally, be at the risk of that other party. For example, in a coal-supply agreement, the mining company may seek to have "Geology risk" included as a force majeure event; however, the mining company should be doing extensive exploration and analysis of its geological reserves and should not even be negotiating a coal-supply agreement if it cannot take the risk that there may be a geological limit to its coal supply from time to time. The outcome of that negotiation, of course, depends on the relative bargaining power of the parties and there will be cases where force majeure clauses can be used by a party effectively to escape liability for bad performance.
Because of the different interpretations of force majeure across legal systems, it is common for contracts to include specific definitions of force majeure, particularly at the international level. Some systems limit force majeure to an Act of God (such as floods, earthquakes, hurricanes, etc.) but exclude human or technical failures (such as acts of war, terrorist activities, labor disputes, or interruption or failure of electricity or communications systems). The advisory point is in drafting of contract make distinction between act of God and other shape of force majeure.
As a consequence, force majeure in areas prone to natural disaster requires a definition of the magnitude of the event for which force majeure could be considered as such in a contract. As an example, in a highly seismic area a technical definition of the amplitude of motion at the site could be established on the contract, based for example on probability of occurrence studies. This parameter or parameters can later be monitored at the construction site (with a commonly agreed procedure). An earthquake could be a small shaking or damaging event. The occurrence of an earthquake does not imply the occurrence of damage or disruption. For small and moderate events it is reasonable to establish requirements for the contract processes; for large events it is not always feasible or economical to do so. Concepts such as 'damaging earthquake' in force majeure clauses do not help to clarify disruption, especially in areas where there are no other reference structures or most structures are not seismically safe.
The term cannot, however, be extended to cover delays caused by bad weather, football matches, or a funeral: the English case of Matsoukis v. Priestman & Co (1915) held that "these are the usual incidents interrupting work, and the defendants, in making their contract, no doubt took them into account.... The words 'force majeure' are not words which we generally find in an English contract. They are taken from the Code Napoleon, and they were inserted by this Romanian gentleman or by his advisers, who were no doubt familiar with their use on the Continent." In Hackney Borough Council v. Dore (1922) it was held that "The expression means some physical or material restraint and does not include a reasonable fear or apprehension of such a restraint".
Even if a force majeure clause covers the relevant supervening event, the party unable to perform will not have the benefit of the clause where performance merely become (1) more difficult, (2) more expensive, and/or (3) less profitable.
Other events that are candidates for force majeure in French law are hurricanes and earthquakes. Force majeure is a defense against liability and is applicable throughout French law. Force majeure and cas fortuit are distinct notions in French law.
In Argentina, Act of God can be used in Civil Responsibility regarding contractual or noncontractual obligations.
Fortuitous events must not be caused by man but by nature. Therefore, economic crises are not considered as force majeure events that allows a debtor to be free of his obligation or debt. However such crises as an effect of wars such as World War II are considered as force majeure events as stated in Sagrada v. Nacoco (G.R. No. L-3756). The landmark case on this article and event is the case of Juan Nakpil v. CA (G.R. No. L-47851). In this case, the Philippine Bar Association (PBA) building was the only building destroyed on Arzobispo St., Intramuros, Manila during an earthquake in 1968. The PBA, through the Jose W. Diokno Law Office, led by Sen. Diokno himself, sued Nakpil & Sons as well as the contractor of the building, United Construction Company, Inc., and won in the trial court. (2025). 9789719378709, Diokno Law Center, University of Michigan. ISBN 9789719378709 The case was merely reiterated and affirmed by the Court of Appeals. Finally in 1986 the case was decided with finality by the Supreme Court. The Court mentioned the four requisites, by breaking down Article 1174. These are still the requisites used in Philippine courts today. These requisites are:
In doing so, the Supreme Court ruled that there is no fortuitous event, after also observing certain problems in construction such as measurement deficiencies and poor foundations.
|
|
