The heart of contract litigation is based on predictability and certainty between the parties. Sometimes when events occur that are outside of the parties’ control, they are allowed to invoke their force majeure provision of their contract to relinquish any responsibility.
What is force majeure?
Often, unpredictable events can result in a party’s inability to fulfill their obligations and duties under a contract. While some of these events are considered acts of God, others are caused by human intervention. Classic examples of these events include:
- Civil war
- Natural disasters
- Virus outbreaks
- State of emergency declarations
- Governmental lockdowns
Force majeure, a French term meaning “greater force,” is a legal concept often used to delay or excuse performance under a contract. To invoke force majeure, a party must establish that:
- An unforeseeable event occurred.
- The unforeseeable event occurred outside of the parties’ control.
- The unforeseeable event rendered performance impossible or impractical.
If all three of these elements are proven, the breaching party may have legal justification for nonperformance. However, this does not necessarily mean that performance is excused indefinitely. Rather, the expectation of performance may be put on pause until the unforeseeable event has ended or subsided.
While it is impossible to predict the unpredictable, incorporating a solid force majeure provision into new and existing contracts can go a long way in protecting both parties. A business law and commercial litigation attorney who is well-versed in contract law can make sure to include a force majeure clause in your agreement.