Despite what you may think, English law has no recognised meaning or definition of force majeure or a force majeure event. Therefore, you will need to rely on exactly what is said within your contract. Most contracts will define exactly what constitutes a force majeure event by stating it needs to be “beyond a party’s reasonable control” and include a non-exhaustive list of the types of events covered.
The burden of proof will be strictly on the party who is seeking to rely on the clause. Therefore, an important first step is to ensure you have read and understood the clause and considered whether the event you are relying on falls within the definition in your contract.
What happens when you want to trigger the force majeure clause?
To trigger the clause, there are usually formalities set out which will need to be followed.
Firstly, you will need to ensure there is a direct link between the event and your inability to perform the contract before the clause can be triggered. You should retain all evidence of disruption as this will prove your reasoning for delay or cancellation. Doing this will support your reasoning for not being able to perform the contract.
Additionally, a force majeure clause will usually require the defaulting party to show that they have used reasonable endeavours to prevent or at least mitigate the risk. Having evidence of your attempts to mitigate the problem will also help to show you are complying with the correct formalities under the clause. It will always be beneficial to consider if there are any alternative ways of performing your contractual obligations.
When notifying the other party of your non-performance due to a force majeure event, the clause may require you to provide written notice. It may specify that the notice invoking the clause may need to be given in a particular way or within a particular timeframe.
Therefore, when reviewing the clause, make sure you are aware of any requirements and timeframes in place. This is always important to consider as soon as possible – the timescales could be as strict as providing notice as soon as the force majeure event occurs.
Finally, the effect of a force majeure clause will depend on how it is drafted. It will generally include suspension of the obligations while the event continues. In some cases it might allow either party to terminate the agreement after a specified period if the event continues. You will need to carefully consider the effect of serving a force majeure notice to ensure it aligns with your intentions and what you are trying to achieve, whether this is suspending performance of the contract for a period of time or terminated completely.