The dictionary of legal jargon may be a daunting one, and many times the usage of some terms might not even come up unless a specific case demands it. However, the knowledge of some commonly known legal provisions is important to understand how to approach the case and how to properly execute it. One of these provisions happens to be the force majeure provision.
In Latin, force majeure is the same as vis major, which means a “superior force”. It refers to a series of events that are unfortunate but unavoidable by any means, and cannot be prevented by either party. These include instances of war, battles, strikes, riots, or incidents that can be described as Acts of God (natural calamities, and such). This may prevent all or few parties from fulfilling their obligation to a contract.
For force majeure to be applicable, one of the important factors is that the circumstances should be unforeseen. Of course, what is defined as unforeseen and unavoidable is described and exercised differently in different jurisdiction. So, it is important to cover all your bases when writing the contract and agreeing to its terms. Coronavirus COVID 19 outbreak can fall within the scope of Force Majeure clause in business agreements to provide relief.
To understand the biggest conflict of force majeure, it is important to understand the concept of pacta sunt servanda. Pacta sunt servanda means that all “agreements must be kept”, or that all terms and conditions of a contract must be followed. This proves to be the biggest hurdle for the force majeure provision. However, the real world and current events have also informed of how it is enforced.
There are many natural calamities and threats that are becoming frequent due to climate change and man-made industrialization. There are also some threats that science has made us aware of, which we previously did not know to look out for. In the same way, military research & development, as well as technological advancement has created awareness of multiple man-made threats in the future.
As a result, the definition of what constitutes as an Act of God, and what is foreseeable, is changing constantly. If you are in a situation where you are unsure if force majeure can protect you, it is a good idea to speak to a legal team about it. The lawyers at Rahul Dev are equipped to help you accurately understand your contract, and whether you can rely on this particular provision.