The storms and floods mean that I can't fulfil my contract. What can I do?

The storms and floods mean that I can't fulfil my contract. What can I do?

Another week, another awful storm and dismal tales of flooding, storm force winds and disruption to daily life. This unprecedented tweet from Virgin Trains last night (during the height of the storms) pretty much sums it up:

https://twitter.com/VirginTrains/statuses/433653504360472577

It is also pretty sobering to note that the Thames Barrier, which was used 4 times in the 1980s, has been used almost 30 times this winter alone:

https://twitter.com/mjrobbins/statuses/433696743662694401

The unhappy news is that, for the time being at least, the storms and flooding are set to continue. Amber warnings of rain and yellow warnings of wind have been issued by the Met Office for Friday and Saturday. Therefore for many businesses, it will be critical that they check their business continuity plans and any so-called 'force majeure' clauses in any relevant contracts.

So what is 'force majeure'? It is literally translated as 'superior forces'. In other words, it is an unexpected and disruptive event that can, in certain circumstances, operate to excuse a party from its obligations under a contract. These clauses—if they exist in a contract—will be of interest to:

  • businesses which are unable to do what they agreed to do under a contract, or
  • businesses where another business, such as a supplier, is unable to do what they agreed to do under a contract.

Now this is where I do something that many lawyers would balk at: forget about any contracts in the first instance; instead, have a word with the other side and see how you can resolve any difficulties without resorting to the fine print of any contracts. Many businesses are quite happy to show their human side during challenging times, as proved by this thoughtful pub in the Euston area last night:

https://twitter.com/DoricArchPub/statuses/433694764513636352

Or indeed JCB:

https://twitter.com/JCBAgriculture/statuses/433638773167902720

But of course, this isn't always possible.

So have a look in any relevant contracts to see if a 'force majeure' clause is included. Bear in mind, however, that although many contracts between businesses will use this term, the OFT frowns upon the use of the term 'force majeure' in business to consumer contracts so it may not be that obvious to find.

You should be looking for something along these lines:

Neither party shall be liable for any default due

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