Force Majeure and Covid-19

One of the things that I say in my courses on contracts is that it is only when things we go wrong that we actually look at the fine print in the contract.  Well the Corvid 19 situation is definitely a time when people go and look up what their contract actually says, particularly the Force Majeure clause - if there is one.

Force Majeure is a well known phrase that means different things to different people.  In fact some legal commentators state that there is really no such thing as a Force Majeure clause, and that everything could be covered by the doctrine of frustration or other legal principles.

The general idea of Force Majeure is a clause to deal with events that are outside the control of the relevant party, were irresistible (an Act of God) and unforeseeable.  Now that seems easy to understand, until you start delving into it.  The recent floods were irresistible, but were they unforeseeable? If they were now, would they be unforeseeable if they happened in the same places next year?

In standard contracts we may have a Force Majeure clause (or may not) which states what is covered.  Surely the Covid 19 epidemic is the sort of event that is covered?  Well, I was recently comparing standard Force Majeure clauses from standard forms of contract from IChemE and LOGIC.  One explicitly identified pandemic as covered - the other didn't.  Which was which?  And what do your contracts say?  Well this is the point where I suggest you go and have a look for yourself and check.  Hopefully, before it is too late.


Lawyer and legal commentator David Allen Green had a useful analysis on his twitter feed, here.