Q&As

Is a force majeure clause enforceable in a business-to-consumer contract because of coronavirus (COVID-19)?

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Published on LexisPSL on 13/03/2020

The following Commercial Q&A provides comprehensive and up to date legal information covering:

  • Is a force majeure clause enforceable in a business-to-consumer contract because of coronavirus (COVID-19)?
  • Incorporation
  • Fairness test
  • Blacklisted terms
  • CMA guidance

Is a force majeure clause enforceable in a business-to-consumer contract because of coronavirus (COVID-19)?

Traders seeking to rely on force majeure provisions in their contracts with consumers for delays in performance caused by the coronavirus (COVID-19), or to relieve them of their contractual obligations, will need to consider whether:

  1. the term has been effectively incorporated into the contract, determined in accordance with common law principles, and

  2. the term is fair, determined in accordance with the Consumer Rights Act 2015 (CRA 2015)

If the force majeure clause has not been effectively incorporated into the contract or is unfair, it will not be enforceable against the consumer.

Incorporation

In order to be enforceable, a term must be properly incorporated into the B2C contract at the time the contract is made. The party seeking to rely on them must show that either the other party has specifically agreed to, or knew of, the terms (eg by showing a signature to them) or that it has done what is reasonably sufficient to give the other party notice of them (before formation of the contract). This will be a question of fact in each case. The more onerous or unusual the terms, the more that needs to be done to bring them to the notice of the other party.

For more information on incorporating express terms, see Practice Note: Contract interpretation—express terms in contracts.

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