This article provides a general guide to force majeure and should not be taken as legal advice. You should always take specific advice before you decide what to do regarding particular circumstances – not least because the application of force majeure will normally be quite context sensitive, particularly concerning the terms of the contract to which the circumstances relate. Please contact us for tailored advice.
Most people assume that force majeure means anything outside the control of a party to a contract. In fact, the term 'force majeure' does not have a specific legal meaning in English law (Hackney Borough Council v Doré  1 KB 431, at 437.). Although use of the term in contracts is very common, its meaning depends on the particular contract in which it is used. This means that each contract may be different in the way it applies rules about force majeure, and in order to decide how it applies in any given case, you will need to look at the relevant wording of the particular contract.
The circumstances in which a force majeure clause will apply will depend on the wording of the relevant term of the contract. Force majeure clauses may vary in the way that they are drafted:
How the clause is worded is important because, in order to decide whether or not you can rely on a force majeure clause, the first step is to decide whether or not the event that has caused the problem falls within the definition of force majeure event used by the relevant contract (see below).
In order to be able to rely on a force majeure clause in a contract, you will need to be able to show the following:
You may also need to show that you were not aware, at the time of entering the contract, that the circumstances giving rise to the event of force majeure were likely to occur (see further, below). There is a flowchart at the end of this article that will give you a general idea of whether you are likely to qualify for relief under a force majeure clause in any given circumstances.
This depends on the wording of the force majeure clause. Some points to bear in mind:
So, in summary, the event that has occurred must fall within the categories of force majeure event set out in the relevant clause, and the clause must also cover what has happened as a result (that is, the type of adverse effect that it has had on your performance).
It depends on the circumstances, but probably not. For example:
This is linked to the fact that (as mentioned above), in all cases, in order to rely on a force majeure clause, you will have to be able to show that you have taken all reasonable steps to overcome or mitigate the problem. If there are steps that you can reasonably take (eg hiring temporary staff, invoking backups, spending some money), then you will need to have done it before you try and rely on the force majeure clause.
If, for example, there are three possible ways in which you could perform your obligations under a contract, and a force majeure event affects only one of them, then you will probably not be able to rely on force majeure in order to excuse any non-performance – you would be expected to use one of the unaffected methods of performance instead.
Yes. If the non-performance is caused by something other than the force majeure event, then you cannot rely on the force majeure clause in the contract.
Yes. Even if the event that has occurred falls within the definition of force majeure in the contract, unless the occurrence of that event is also outside your control, you cannot rely on the force majeure clause in the contract.
No. Unless it very clearly says otherwise, a force majeure clause will not normally cover any circumstances brought about by a party's own acts or omissions or their negligence or wilful default (see New Zealand Shipping Co v Société des Ateliers et Chantiers de France  AC 1, 6).
Ordinarily, the failure of a third party in the supply chain (such as one of your sub-contractors) to comply with the contract to which they are a party will not be treated as an event of force majeure (see Lebeaupin v Richard Crispin and Company  2 K.B. 714).
However, if the non-performance by the third party is in turn caused by an event outside the third party's control – and is something that would have been treated as an event of force majeure if it had happened to you – then depending on the wording of your force majeure clause, it may in those circumstances be treated as an event of force majeure.
Yes. If you want to rely on the force majeure clause, you will have to be able to show that there were no reasonable steps that you could have taken to overcome or mitigate the event or its consequences. This means that, before you try and rely on the force majeure clause, you must first consider if there is anything you can reasonably do to mitigate the relevant problem and, if there is, do it.
No. For example, now that the coronavirus epidemic has started, if you enter into a contract after this point and then have problems performing as a result of coronavirus, you may not be able to rely on force majeure unless the contract specifically covers coronavirus and its consequences, and provides for what happens if it affects performance of the contract.
The occurrence of a force majeure event that adversely affects a party's performance will normally only permit the termination of the contract if and to the extent that the contract says that a party can terminate it as a consequence of the force majeure event. Force majeure clauses often include an express power of termination that can be invoked if the delay due to force majeure continues for a certain period of time.
In the absence of an express power of termination, the position is more complicated and you may have to try and rely on different legal doctrines to try and bring the contract to an end, so specific advice will be required.
The mere fact that there has been a force majeure event (without that force majeure event being the cause of a failure by either party to perform its obligations under the contract) does not of itself mean that either party can get any relief from performance under the contract, or terminate the contract.
If, for example, a force majeure event occurs and one of the parties no longer wants to proceed with the contract as a result, then unless the force majeure event has actually had an adverse effect on performance by either party so as to bring it within the ambit of the force majeure clause, it will not normally give either party a right to change or terminate the contract.
For example, if you have an advertising contract and no longer wish to carry on with the advertising because of the coronavirus epidemic, unless the epidemic causes one or both parties to be unable to perform under the contract, absent a specific term of the contract entitling you to do so, you are not likely to be able to use force majeure as an excuse for early termination of the contract.
As a general point, there is at least one case (Lebeaupin v Richard Crispin and Company  2 K.B. 714) that has suggested that an epidemic would normally be treated as an event outside a party's control.
However, you should cover the current coronavirus epidemic using specific terms – either as an addition to your force majeure clause, or separately – since it's a circumstance that you are now aware of and so it would not normally be covered by an ordinary force majeure clause (see above).
Yes. If, for example, the force majeure clause requires that a party wishing to rely on it has to give a particular type of notice to the other party, then that requirement will normally need to be complied with in order for the clause to be relied upon. If the required notice is not given, then it may not be possible to rely on the force majeure clause.
There may be some circumstances in which a force majeure event has an adverse effect on your ability to fulfil multiple contracts, and which leaves you in the position in which (for example):
In circumstances like these, as long as you act reasonably, you can normally choose how you want to approach this. You might, for example, choose to fulfil only some contracts, or all of the contracts to a partial extent. However, the rules about this are complicated, so you should get specific advice about this before you decide how to act.
Yes. If a party has to perform an obligation under a contract within a reasonable time – that is, the contract does not provide for a specific time for performance of the obligation concerned – then if performance is delayed due to reasons outside the control of the relevant party, that may be taken into account in deciding whether performance has taken place within a reasonable time, and therefore whether the party is in breach. What is a reasonable time for performance is assessed in the light of all the relevant circumstances.
This rule only applies where no time for performance is specified and where performance has been wholly prevented rather than just inhibited. This is usually referred to as the rule in Hick v Raymond & Reid, after the principal case in which it was applied. The rule only acts a potential defence to a claim for non-performance, not as something positive that the non-performing party can rely on to continue non-performance.
In addition, it is possible for a contract to be frustrated (and therefore treated as having come to an end) as a result of a force majeure event, but that is quite a complicated doctrine and outside the scope of this article.
See here for more on the doctrine of frustration.
English contract law is built around the notion that parties are free to agree the terms of the contract and are then bound by those terms.
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