) ¢ FORCE MAJEURE and UNFORESEEABLE EVENTS, ‘iy ng. PT. Gichuhi BSc); R-Con. Eg; LLB; LLM; Advocate Introduction Traditionally construction and engineering contracts have allowed some relief to contractors where the works have been delayed due to unforeseen events beyond the control of either party under the banner of force majeure. The term force borrowed from French law and although frequently used majeure is simultaneously with the phrase ‘Act of God’, is nevertheless considered to extend beyond natural disasters. Hudsons Building and Engineering Contracts states: “The term force majeure does not have any precise meaning nor does it give rise to any special legal doctrine or consequences in, although itis a well known expression and a considerably more developed concept in Europe and other civil Jaw systems. Potentially the expression covers a wider class of events than Act of God since it will include man made events or interventions, such as strikes or wars or legalisation." The above passage from Hudson draws authority from the Judgement or MoCardie J in Lebeupin v Crispin also stated that war, inundations and epidemics are all instances of force majeure. So what is Force Majeure? ‘There are various description of force majeur or majeure as in Lebeupin v Crispin ‘All ciroumstances independent of the will of man AND which is not in his power 0 control Majcur io more commonly known ae An Act of God. Such a term is rarely seen in construction contracts but is noted here to identify that the phrase is within the narrower than Force Majeur because, arguably, some acts of God power of man to control,a ICE form of Contract defines Force Majeur as ; «any circumstance beyond the reasonable control of a party which prevent or impede the due performance of a Contract including but not limited to war or hostilities; riot or civil commotion; epidemic; earthquake flood or other natural disaster; Other Forms of Contract defines Force Majeur as “war, hostilities, ianising, waves, radio activity, pressure waves, revolution, riot, any other circumstances beyond the reasonable control of contractor. Mast other standard forms of canctmietion na longer use the phrases Vie Majeur & Force Majeure and are more specific in dealing with actual circumstances heyand man's will and contral. In such event no automatic entitlement existe which affords either party to rely on a Force Majeur clause. Where the terms and conditions of contract do make an expressed provision for a particular circumstances then those terms and conditions must provail. Towever circumstances such as weathet iiay vl Le expressed iat tc (exis atl conditions and it is typically this scenario where the question of liability for the patties’ custs, Une uu! dauiages auises, ‘Where is Force Majeure applicable. orce Majeure clauses are almost always included in project agreements, However, they are rarely given much thought unless and until one or mote parties seek to rely on them, However, in the current global environment itis appropriate to examine their application. Force Majeure is civil law concept that has no real meaning under the common law. However, force majeure clauses are used in contracts because the only® similar common law concept ~ the doctrine of frustration — is of limited application because for it to apply the performance of « contract must be radically different from what was intended by the parties. In addition, even if the doctrine does apply, the consequences are unlikely to be those contemplated by the parties. An example of how difficult it is to show frustration in England is that many of the leading cases relate to the abdication of King Edward before his coronation and the impact that had on contracts entered into in anticipation of the caronation, ceremony The coronation did not take place and many contracts based on that event were frustrated. In cirenmstances where 9 project anmpany wants to minimise any opportunity for extension of time claims it could consider not including a force majeure clause and inctead relying on the doctrine of frustration, However, before making a determination to rely on frustration an employer must consider how frustration is applied in the relewant juricdiction and, in particular, whether the common law application has been altered by legislation, Given that force majeure clauses are creatures of contract, their interpretation will be governed by the normal rules of contiactual wustuctivu. Puce Majeure provisions will be constructed strictly and in the event of any ambiguity the contra pioficuteue rule will apply. Conta proferentem literally means “ayainst the party putting forward”. In this context, it means that the clause will be interpreted against the interests of the party that draned it, The parties may contract out of this rule. Importantly, parties cannot invoke a foree majeure clause if they are relying on their own acts or omissions. General force majeure provisions ditionally, force majeure clauses, in referring to circumstances beyond the control of the parties, were intended to deal with unforeseen acts of God orgovernments and regulatory authorities. More recently, force majeure clauses have been drafted to cover a wider range of circumstances that might impact on the commercial interests of the parties to the contract. It is now quite common for force majeure clauses to deal not only with the impossibility of performance but also with questions of commercial impracticability. By itself the term ‘force majeure’ has been constructed to cover acts af God, war and strikes, even where the strike is anticipated; embargos, refusals to grant Tisanoas, and ahnarmal whather conditions The underlying test insolation to most force majeure provisione ie whether a particular event was within the contemplation of the parties when they made the contrast, The event must aloo have been oulide the eontrol of the contracting party. Despite the current trend to expressly provide for specific force majeure vents, case law actually grants an extensive moaning to the term force majeue when it occurs in commercial contracts. ‘There are generally three essentials elements to force majeure: = Thea ovcur with or without hun interventions and ~ It Was complerely beyond the parties control and they could nor have = Itcannot have reasonably been foreseen by the partis prevented its consequences. ‘For instance, Baithanche J. im Matsoutas v Priestman held that force majeure covered dislocation of business owing to a universal coal strike, access to machinery, but not bad weather, football matches or a funeral. In Lebeupin v Crispin force majeure was held to mean all circumstances beyond the will of man, and which itis not in his power to control. Therefore, war, floods, epidemics and strikes are all eases of force majeure. ‘There is an important caveat to the above and that is, parties cannot invoke a force majeure clause if they are relying on their own acts or omissions.Additionally, the force majeure event must be a legal or physical restraint and not merely an economic one. “Circumstances beyond the control of the person concerned? ‘The phrase ‘circumstances beyond the control of the person concerned’ has not been subject to detailed examination hy the courts. The courts simply assume that the phrase is given its common and everyday meaning. The phrase has been judicially held to refer to occurrences which neither the person cancemed, nor any person acting on their behalf to do the act or take the step, could prevent. Recent practice hao significantly expanded the soope of such clauses to cover a wider range of circumstances that might impact on the commercial interests of the patlics Wy the contract, Te pluase ‘vier vir vumseances beyond the control of the parties! would include aan industrial strike, Therefore, specific reference to ‘strikes’ may be unnecessary in force majeure provisions whieie the above phrase appears, although itis still advisable to include it. Asa general rule a party cannot invoke a force majeure clause due to ‘circumstances beyond the control of the partes’ which, wv die Kuowledye uf the party seeking to rely upon the clause, were in existence at the time the contract ‘was made. In the Reardon Smith case the court stated that ordinary a party would be debarred from relying upon a pre-existing causes as an excepted peril if: was inevitably doomed to operate on the contract; i) the pre-existing c and