Why force majeure clauses don’t always hold up in court

On Behalf of | Mar 22, 2024 | Contracts

Force majeure clauses are typically included when construction contracts are drafted. These clauses limit or eliminate liability for not finishing a project or not meeting the deadline if a “greater force” prevents it.

While these clauses are typically associated with “acts of God” like hurricanes, tornadoes and earthquakes, they can be used for events caused by humans, like wars, terrorist attacks and more. These things don’t have to take place in the location of the construction. A sudden outbreak of war in another country or a pirate attack on the high seas can destroy needed materials or prevent them from getting to the U.S.

What’s necessary to invoke the clause?

Not every catastrophic event can warrant the successful invocation of a force majeure clause. Typically, it has to meet several qualifications. It must be:

  • Unforeseeable
  • External (to those bound by the contract)
  • Serious enough that it prevents a party from fulfilling its obligations as defined in the contract

If one party challenges another’s attempted use of the force majeure clause, it’s not as easy to uphold as it once was. Weather patterns, as extreme as they’ve been in recent years, are becoming more easily predictable due to advanced technology.

If a party relies on materials from a county that is regularly beset by violence and war, an outbreak may not be considered “unforeseeable.” If a region of the U.S. or another part of the world is regularly beset by floods and droughts, are these really unforeseeable?

Avoiding the need to invoke the clause

It’s typically best if a party to a contract doesn’t have to invoke a force majeure clause. With foresight and planning (such as having one or more alternate plans ready to go), contractors and other construction professionals can minimize their risks of falling victim to forces over which they have no control.

If you’re crafting, negotiating, challenging or attempting to uphold a force majeure clause, it’s crucial to have experienced legal guidance. That way, you can be more confident that your contract meets your needs and will minimize the unique risks that you face when it comes to project work.