“Force majeure” is a contractual provision that explains events agreed upon by the parties as unforeseen, unavoidable, and beyond the control of either. These events triggering force majeure are encompassing and may include natural cataclysms, political unrest, labor disturbances, or acts of God – essentially any event that allows a party to fail in their performance obligations without consequent liability for the other party.
Historically assumed to be a mere boilerplate term, force majeure took a central role in lawscape discussions globally in 2020, mainly provoked by the COVID-19 crisis. With a wave of event cancellations, government mandates, and various other virus-induced obstructions, transactional attorneys worldwide had the challenging task shuffled through their contracts’ force majeure clauses. Their objective was to ensure the explicit inclusion of words like “pandemic,” “epidemic,” and “public health emergency.”
While the best attorneys and strongest contracts are preventive rather than reactive, it’s essential to note that force majeure, albeit lurking in the shadows, offered many struggling industries a potential escape from debt during challenging times. Amid the rising uncertainty and the calm before potentially the next storm, enhancing the language of your force majeure clauses should take precedence.
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