Some standard forms provide for an extension of time where work is delayed by force majeure. What is force majeure?
Several forms list force majeure as a ground for an extension of time without defining it. Because English law has no general doctrine of force majeure, its meaning turns on the clause and a handful of authorities.
Force majeure has no settled meaning in English law: it is construed from the wording of the particular clause, covers events outside the control of the parties that actually occur but not economic change, and under FIDIC is defined by four cumulative conditions
Force majeure has no fixed meaning in English law. It is a concept taken from French law, and the English courts have developed no general doctrine of it, so its content depends on the wording of the particular clause. The modern courts treat it as not a term of art: whether a force majeure clause is triggered is a question of construing the words used. The older cases show it covering events outside the parties' control that actually occur, such as a coal strike or a breakdown of machinery, but not bad weather, and not the mere fear of a threatened strike. A change in economic or market circumstances is not force majeure, even a severe one. The FIDIC conditions define the term through four cumulative conditions, which removes much of the argument. The ICE conditions do not use the term at all.
| English law | No general doctrine; force majeure is not a term of art |
| Meaning | Comes from construing the wording of the particular clause |
| Covers | Events outside the parties control that actually occur, such as a strike or breakdown |
| Does not cover | A change in economic or market circumstances, however severe |
| FIDIC | Defined by four cumulative conditions; ICE does not use the term |
The problem
Some standard forms, including the JCT contracts, list force majeure as a ground for an extension of time but do not define it. The ICE conditions do not use the term at all. So when a contractor claims an extension for force majeure, the first question is what the phrase means. English law gives no ready answer: force majeure is a concept borrowed from French law and has no settled legal doctrine of its own in England. Its content comes from the words of the particular clause and a small number of older cases.
Not a term of art
The starting point in the modern law is that force majeure is not a term of art. Whether a force majeure clause is triggered depends on the proper construction of its wording in the particular contract, read against the nature and general terms of that contract. A clause is construed with close attention to the words that precede and follow the phrase, an approach the older authorities already applied and the Commercial Court restated in Tandrin Aviation Holdings Ltd v Aero Toy Store LLC.
What counts
The older cases give the phrase some content. In Matsoukis v Priestman & Co, on a shipbuilding contract, a universal coal strike and a breakdown of machinery were held to be force majeure, but bad weather was not. Later, in Hackney Borough Council v Dore, a clause excusing interruption of an electricity supply by force majeure was held to cover a strike that actually proceeded, not the fear, however reasonable, of a threatened strike. The theme running through them is that force majeure captures events outside the control of the parties, such as an act of God, a strike or a breakdown of machinery, once they have actually occurred.
What does not count
The modern limit is economic. A market or financial change does not qualify.
A buyer of a business jet refused to take delivery or pay the balance of the price and sought to rely on a force majeure clause, arguing that the severe deterioration in global financial markets excused its non-performance. Hamblen J rejected the argument and gave summary judgment for the seller. A change in economic or market circumstances that affects the profitability of a contract, or the ease of performing it, is not force majeure. The risk of the market moving is not the kind of supervening event these clauses address.
The FIDIC definition
The FIDIC conditions are among the few standard forms that define the concept. FIDIC's official position on this issue is that force majeure is an exceptional occurrence outside the affected party's control. The event must also have been one for which that party could not reasonably have made provision when contracting, could not reasonably avoid or overcome once it arose, and which is not substantially attributable to the other party. All four elements must be present. That definition is narrower than the open use of the phrase in the forms that leave it undefined, and it removes much of the argument about meaning.
Practical steps
Start with the clause. Force majeure has no fixed legal meaning in England; the wording of the particular contract defines it.
Do not treat a market or economic change as force majeure. A downturn that makes performance less profitable or harder is not enough.
Look for an event outside the parties' control that has actually occurred, such as a strike that proceeds or a breakdown, not a feared or threatened one.
Where the contract defines force majeure, as FIDIC does, work through each element; all of them must be satisfied.
Keep the ICE position in mind: some forms do not use the term at all, and a force majeure claim under them has no basis.
Record the event and its effect. The claim stands or falls on showing an event the clause covers and its impact on the works.
Authorities
| Authority | Citation | What it decides |
|---|---|---|
| Matsoukis v Priestman & Co | (1915) | A universal coal strike and a breakdown of machinery were force majeure; bad weather was not |
| Lebeaupin v Crispin | (1920) | A force majeure clause is construed with close attention to its wording and the nature of the contract |
| Hackney Borough Council v Dore | (1922) | Force majeure covers a strike that actually proceeds, not the fear of a threatened one |
| Tandrin Aviation Holdings Ltd v Aero Toy Store LLC | [2010] EWHC 40 (Comm) | Force majeure is not a term of art; a change in economic or market circumstances is not force majeure |