2020 was a year of unforeseeable and unpreventable obstacles. As COVID-19 swept over the nation, many organizations were left uncertain on how they could fulfill their contractual obligations. With this uncertainty, the Force Majeure Doctrine became a hot topic with new relevance.
Force Majeure, French for “superior force”, is a contractual tool used to excuse a party’s performance in the event that an act of god or other superior force makes performance impossible. For Force Majeure to apply, the contract must include a clause that establishes what events will be included. Some Force Majeure provisions are fairly broad, applying to any “act of god” or unforeseen and uncontrollable circumstances while others provide specific circumstances (natural disasters, war, government orders, etc.) that will excuse performance.
In order to invoke the Force Majeure Doctrine, the superior force must fit within the language of the provision. The events must be unforeseeable and unpreventable and cannot merely make performance “impractical”. The force majeure event must cause extreme and unreasonable difficulty, expense, injury, or loss and must be the direct cause of the failure to perform.
When drafting a contract, there are circumstances that are unforeseeable and out of control that may affect your ability to perform. The attorneys at Simpson, Jensen, Abels, Fisher & Bouslog, P.C. are experienced in handling complex contract issues. Contact us at (515) 288-5000 to discuss implementing or enforcing your contracts Force Majeure clause.
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