Throughout this article, I will explain what the term ‘force majeure’ means in construction.
The term force majeure originally came from French law, which translates as ‘superior force’. Whilst in France, the term has a defined legal meaning, in English law it does not; it is dealt with in different ways by different forms of contract.
In general terms, the concept refers to extraordinary and unforeseeable circumstances that are outside of a contracting party’s control and hinder or prevent them from fulfilling their contractual obligations. However, it cannot be an event that the party could have reasonably anticipated or prevented, nor can it be an event caused by the other party to the contract.
Force majeure clauses aim to define the situations that fall under the term and establish the appropriate course of action in such cases. The specific circumstances that may be classified as force majeure vary depending on the terms of the contract, but they could include the following:
- Unforeseen changes to legislation.
- Wars and other hostilities.
- Exceptionally adverse weather.
- Civil unrest, such as riots.
- Strikes (other than by the contractor or subcontractors).
- Natural catastrophes such as earthquakes and floods.
- Epidemics or pandemics.
Force majeure is regarded as a ‘relevant event’ in certain contracts, enabling the contractor to request an extension of time if they have been obstructed or prevented from fulfilling their contractual responsibilities. However, if the contractor has persisted in performing their duties despite the event’s occurrence, they may not be entitled to make such a claim.
Typically, clients acknowledge that contractors are unable to fulfil their contractual obligations in the event of genuine force majeure. However, issues arise when clients suspect that the contractor is invoking force majeure unnecessarily to gain a commercial advantage. Disputed claims are particularly common in relation to exceptionally adverse weather as the term is not always defined. Force majeure clauses need to be flexible enough to cover events which are by their very definition unforeseeable, but specific enough to prevent disputes from arising.
Some forms of construction no longer use the phrase force majeure, but instead include clauses to deal with the specific circumstances that might arise.
If a contractual obligation becomes impossible to perform, it may be deemed a “frustration event” leading to the termination of a contract. Frustration arises when external factors beyond the control of either party make it impossible to continue with the contract. As a result, the contract will be terminated without either party being deemed to have breached it.
Remember, if you are faced with a construction dispute, Mercantile Barristers will be happy to assist. Do use the enquiry form below to contact us to discuss your matter further.