Not all force majeure clauses are created equal

On Behalf of | Dec 16, 2022 | Construction Law

Unlike many states, most construction projects can continue all year round in Florida. However, we have more than our fair share of extreme weather events that can delay or even derail a project. 

That’s one reason why a force majeure clause is necessary in every contract. This clause helps protect all parties and minimize losses when a “superior force” like a hurricane causes work to stop or potentially destroys what has already been built.

When a force majeure clause can protect you

Force majeure clauses don’t exclusively pertain to weather events. They can protect those involved in a project if there’s an unexpected shortage of materials, labor strike or other issue that causes your plans to go awry. 

The key word is “unexpected.” Construction professionals should know when certain materials are becoming difficult to get or increasing price hikes will soon make your estimate far too low. You should know that a strike could hit if an agreement isn’t reached and getting qualified workers could suddenly be impossible. You’re expected to have a Plan B (and maybe C and D). You may not be able to enforce a force majeure clause if the other party argues that you should have foreseen the problem.

What kinds of things should this clause address?

A force majeure clause is basically insurance so that if a situation that couldn’t have been predicted delays, stops or drastically raises the cost of a project, you don’t have to bear the brunt of the losses yourself. The clause should detail things like:

  • Under what circumstances it can be invoked
  • When the relevant parties must be notified that it’s being invoked 
  • All parties’ responsibilities for losses or additional costs

Like any part of a contract, a force majeure clause can’t be written to protect one party and not the other(s). It needs to be something everyone can live with. A “one-size-fits-all” clause that you include in all your contracts may not be appropriate in every case. You may have to negotiate it. It’s crucial to have experienced legal guidance when developing, negotiating and potentially enforcing a force majeure clause.