Q&As

The government has asked for manufacturers to assist with the supply of medical equipment to combat coronavirus (COVID-19). If I am able to do this, what happens to my contractual obligations under existing customer contracts? Can I claim force majeure, or will I be in breach of contract?

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Produced in partnership with Tim Herbert of Ignition Law
Published on LexisPSL on 31/03/2020

The following Commercial Q&A produced in partnership with Tim Herbert of Ignition Law provides comprehensive and up to date legal information covering:

  • The government has asked for manufacturers to assist with the supply of medical equipment to combat coronavirus (COVID-19). If I am able to do this, what happens to my contractual obligations under existing customer contracts? Can I claim force majeure, or will I be in breach of contract?

The term ‘force majeure’ has no independent meaning at English law. It is a creature of contract and unless the relevant customer contract includes a specific force majeure clause within it, then it will be of no effect.

In general terms, a force majeure clause in a contract excuses a party from performance of that contract following:

  1. the occurrence of an event beyond the reasonable control of the party

  2. which has hindered performance or made it impossible

Assuming that there is a specific force majeure clause in the relevant customer contract, then whether or not you can be excused from the performance of it will depend upon the particular construction of that clause and the surrounding facts.

If the clause makes specific provision for an official request from government for assistance to be a force majeure event, excusing performance, then it would seem likely that one could use the request as an excuse for non-performance.  However, it seems highly unlikely that, unless the contract was made very recently, such a provision would be included.

Precedent: Force majeure clause, defines a force majeure event as ‘any event or sequence of events beyond a party’s reasonable control [and that could not have been reasonably anticipated or avoided] and which prevents it fr

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