Q&As

I have received a force majeure notice from my supplier, what do I do?

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Produced in partnership with XXIV Old Buildings
Published on LexisPSL on 25/03/2020

The following Commercial Q&A produced in partnership with XXIV Old Buildings provides comprehensive and up to date legal information covering:

  • I have received a force majeure notice from my supplier, what do I do?

The first thing to do is to unearth the relevant contract. The notice will have been served pursuant a force majeure clause in that contract. The second is to  construe the clause. Force majeure clauses come in a great variety of forms. Its construction will depend on the particular contract and the particular business.

Certain preconditions apply, eg are there stipulations as to the exercise of the clause, for example, does the supplier have to serve the notice within a particular time, or in a particular form. Has it observed these? If not, depending on the construction of the clause, the precondition may be classed as a condition precedent which would need to be followed to invoke the clause or as an intermediate term, the non-fulfilment of which does not deprive the supplier of the ability to invoke the clause. The customer needs to be careful not to waive such stipulations or act so as to give rise to an estoppel.

The onus is on the supplier to establish that:

  1. the occurrence is one of the events within the clause

  2. it has been ‘prevented’, ‘hindered’ or ‘delayed’ (whatever term the clause uses) from performing the contract by reason of the event

  3. non-performance was due to circumstances beyond its control

  4. there were no reasonable steps it could have taken to avoid or mitigate the event or its

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