The phrase “force majeure” is a French term that directly translates as ‘greater force’. For anyone who has been involved in negotiating and preparing a contract, you would likely have come across the phrase “force majeure”.
Like many aspects of a contract, if you are not a lawyer or have not been involved in negotiating the terms of a contract, you may not have paid much attention to the term ‘force majeure’. While it can often be an overlooked part of a contract, it is in fact an essential part of the contract, particularly because it could be the basis for one or both parties to bring the contract to an end without delivering on their part of the agreement.
A force majeure clause within a contract generally provides for performance under the contract to be excused if performance is rendered impossible by an unavoidable and perhaps unforeseeable event or occurrence. Whether the clause in the contract is expressly labelled as force majeure, it will have the same effect if the clause excuses performance under the contract due to an unavoidable cause such as act of God or act of the state.
To be effective the force majeure clause must not be uncertain and must comply with any requirement to give notice under the contract. The force majeure clause must be prepared with skill and care and with due regard to the nature and general terms of the contract. In the event that something was to happen that affects your ability to perform the contract, you may be unable to rely on the protection of the force majeure clause if you did not inquire before entering into the contract whether such events are covered by the force majeure clause under the contract. Essentially, the events that are covered under a force majeure clause may differ from contract to contract and you should check before signing the contract which events are covered under your contract.
Another point to note is that even if an event is covered under the force majeure clause in your contract, you may still not be able to rely on the clause to avoid performing the contract if the event does not in fact render performance impossible. For example, if a contract lists earthquake as an event that falls under the force majeure clause and the earthquake occurs but does not make it impossible for you to perform the contract, then you may still in fact be required to continue and perform the contract.
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Last updated: 12 April 2023