Q&As

How do I activate a force majeure provision?

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Produced in partnership with Richard Nicholas of Browne Jacobson
Published on LexisPSL on 18/03/2020

The following Commercial Q&A Produced in partnership with Richard Nicholas of Browne Jacobson provides comprehensive and up to date legal information covering:

  • How do I activate a force majeure provision?
  • Is it a defined ‘force majeure event’?
  • Has performance been prevented, hindered or delayed?
  • What are the notice provisions?
  • Duty to mitigate the effects of the force majeure event
  • Is there a right to terminate?

There is no judicially accepted definition of the term ‘force majeure’, so what the parties mean by it must be expressly set out in the contract (ie just referring to ‘force majeure’ doesn’t work) and any specific requirements relating to the procedural aspects of invoking a force majeure clause should be followed by the relevant parties.

Force majeure provisions often state that, upon the occurrence of a specified event which is outside of a party’s reasonable control, that party will be excused from performing part or all of its specific obligations under the contract (and at some later point, maybe have a right to terminate the contract) and will not be liable for failing to perform those obligations.

If a party wishes to trigger a force majeure clause, consider the following:

Is it a defined ‘force majeure event’?

This will depend on the scope of the definition of ‘force majeure’ or ‘force majeure event’ in the contract. A reference to ‘usual force majeure clauses’ has been held void for uncertainty. Furthermore, listing a series of circumstances that will be force majeure and adding after the list the words ‘any event or sequence of events beyond a party’s reasonable control’, may qualify and undermine the ‘catch-all’ language by the previously listed events. The ejusdem generis principle, provides that where a contractual term contains a list of specific words with some

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