Drafting for unforeseen events—commercial contracts
Drafting for unforeseen events—commercial contracts

The following Commercial practice note provides comprehensive and up to date legal information covering:

  • Drafting for unforeseen events—commercial contracts
  • Force majeure
  • Definition of ‘Force majeure’
  • Trigger
  • Causation
  • Mitigation of impact
  • Remedies
  • Rights to terminate
  • Statutory restrictions
  • Business continuity
  • More...

This Practice Note provides practical guidance for general commercial practitioners on points to consider when drafting a business to business agreement to minimise the adverse consequences of a disaster or event beyond your control. It is relevant for practitioners when drafting a contract during a force majeure or other ongoing disruptive event.

Legal practitioners commonly draft contracts with a view to anticipating the ‘worst case scenario’. Typically, this may involve including standard boilerplate and commercial clauses that will favour the drafting party to protect them in the event of the other party’s default, or the default of its contractors (which is deemed to be within the control of the contracting party). Default may also occur as a result of large-scale events such as governmental, political, weather or natural events or pandemics that are outside the control of either party. These events can be local, international or global in their impact.

Where an unforeseen event has made a contract impossible to perform, or the obligations under a contract have been transformed into something radically different, it may be frustrated. This means the contract is immediately brought to an end and both parties are released from any further performance. Frustration is only possible where the contract does not contain a clause intended to deal with the unforeseen event and the unforeseen event is not caused by either party’s

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