H. Force Majeure Clauses

• Author: John D. McCamus
• Profession: Professor of Law. Osgoode Hall Law School, York University
• Pages: 599-602

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Parties who are sensitive to the possibility of disruption of their contractual arrangements by supervening events may decide to include in the agreement a provision that relieves one or both of the parties from further performance if certain specified events of this kind should occur. Such provisions are typically referred to as "force majeure" clauses.¹⁶⁶The general nature of force majeure clauses was characterized by Dickson J. in Atlantic Paperstock Ltd. v. St. Anne-Nackawic Pulp & Paper Co.,¹⁶⁷in the following terms: "An act of God clause or force majeure clause ... generally operates to discharge a contracting party when a supervening, sometimes supernatural, event, beyond control of either party, makes performance impossible. The common thread is that of the unexpected, something beyond reasonable human foresight and skill."¹⁶⁸

Although force majeure is the term used to refer to the French civilian doctrine that most resembles the doctrine of frustration, use of the term to refer to contractual provisions of this kind is not considered to import into the common law system or, more particularly, into the interpretation of such provisions at common law, the French version of frustration doctrine.¹⁶⁹Occasionally, however, parties drafting commercial agreements may use the actual phrase "force majeure" in referring to the supervening events that excuse the performance of one or both parties. Accordingly, common law judges are occasionally required to give some content to the phrase. Thus, in a series of English cases, it has been held that the phrase "force majeure," when employed

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in a provision of this kind, does not excuse performance on the basis of the kinds of interruptions, such as bad weather, that commonly interrupt the flow of work in a particular workplace¹⁷⁰or, more generally, acts resulting from the "act, or negligence, or omission, or default" of the person relying on the clause.¹⁷¹Although some of these authorities refer to civilian sources,¹⁷²a contractual reference to the concept of force majeure itself does not appear to carry a meaning that is appreciably different from the concept of frustration at common law.

The far more common drafting technique for force majeure clauses, however, is to list a sometimes rather lengthy series of supervening events that would constitute an excuse for one or both of the parties.¹⁷³

The following is illustrative:

Neither party shall be liable in damages to the other for any act, or omission or circumstance occasioned by or in consequence of any acts of God, strikes, lock-outs, acts of the public enemy, wars, blockades, insurrections, riots, epidemics, landslides, land subsidence, lightning, earthquakes, fires, storms, floods, washouts, arrests and restraints of rulers and people caught in civil disturbances, explosions and any other cause, whether of the kind wherein enumerated, or otherwise, not within the control of the party claiming suspension and which by the exercise of due diligence such party is unable to prevent or overcome.

The advantages of such a clause are obvious. One can clearly stipulate the kinds of events that excuse non-performance rather than leave the matter to the uncertainties of the common law. Thus, if it is not clear that a strike would constitute frustration at common law, it is clear that it would constitute an excuse under a provision such as that...