Force Majeure - What Does this Entail?
Submitted by: SchoemanLaw Inc
By Robyn Shepherd
Category: Contract Law
Introduction
Force majeure is a contract clause that frees both parties from liability or obligation when an extraordinary event or circumstance is beyond the parties' control. Examples of these events can be a war, strike, riot, crime, plague, or an event described by the legal act of God preventing one or both parties from fulfilling their obligations under the contract.
South African law is stringent as it does not exclude the performance of a contract in all cases of force majeure. Several conditions must be satisfied for a force majeure to trigger impossibility to perform, namely:
the impossibility must be objectively impossible; it must be absolute; it must be absolute as opposed to relative. Therefore, if it relates to something that can, in general, be done, but the one party seeking to escape liability cannot personally perform, then such party remains liable in the contract; the impossibility must be unavoidable by a reasonable person; it must not be the fault of either party; and the mere fact that a disaster or event was foreseeable does not necessarily mean that it ought to have been foreseeable or that it is avoidable by a reasonable person.
Is It Impossible For A Party To Fulfil Its Obligations Under The Contract?
There is a duty to use reasonable efforts to alleviate and mitigate the cause and effect of the force majeure event and resume the performance of its obligations once it can do so. However, a party who does not perform due to a force majeure cannot be sued for any damages suffered by the other party due to the non-performance of the other.
Conclusion
Companies should take reasonable steps to mitigate force majeure events where permissible. Failing, a party may not successfully rely on force majeure as a mechanism to be excused from their obligations.
Contact an attorney at SchoemanLaw Inc for your contractual needs by visiting our website at www.schoemanlaw.co.za.
Robyn Shepherd | SchoemanLaw Inc
Civil Dispute Resolution and Contract Law Specialist
www.schoemanlaw.co.za
SchoemanLaw Inc Attorneys, Conveyancers and Notaries Public is a boutique law firm offering its clients access to high quality online legal documents and agreements, together with a wide range of legal services. The firm has an innovative and entrepreneurial mindset that distinguishes it from other law firms. We apply our first-hand understanding of the challenges facing entrepreneurs (regardless of their business size) to develop proven, practical solutions incorporating legal compliance, risk aversion and business sense. We achieve this by offering clients tailored, yet holistic support comprising of legal gap analysis, the design of tailored legal solutions and the practical implementation thereof through training and automation. With your personal interests in mind, our ultimate aim is to implement measures that protect the results of your hard work as effectively as possible.
