Force majeure is a contractual term originating from the French civil law based on the Roman doctrine vis major meaning \u201csuperior force\u201d. The vis major concept was referred to as acts of God.<\/p>\n\n\n\n
The\nBlack\u2019s Law dictionary defines it as an event or effect that can neither be\nanticipated nor controlled and includes both acts of God and acts of people. <\/p>\n\n\n\n The\ndoctrine of force majeure is not found under common law. However, clauses either\nexcusing contractual parties from their obligations (in part or in full),\nsuspending or extending their period of performance where performance is\nhindered or affected by events that are out of their control are used to grant\nrelief to parties in contracts affected by the events. <\/p>\n\n\n\n Drafting\nForce Majeure Clauses<\/strong><\/p>\n\n\n\n When\ndrafting the clauses, the words \u2018force majeure\u2019 are rarely unqualified. The\ninitial part of a force majeure clause usually defines the acts or events that\nqualify as force majeure that will then lead to invoking of the force majeure\nclause.<\/p>\n\n\n\n The clauses may take a generalized outline under a \u201ccatch all phrase\u201d whereby any event beyond control of the parties is referred to as force majeure, or a definitive form where events deemed as force majeure are listed in the clause. <\/p><\/blockquote>\n\n\n\n The clauses may take a generalized outline\nunder a \u201ccatch all phrase\u201d whereby any event beyond control of the parties is referred\nto as force majeure, or a definitive form where events deemed as force majeure\nare listed in the clause. <\/p>\n\n\n\n The risk that comes with the former approach is that of uncertainty, since the definition is too wide while with the latter, the clause will only be restricted to the listed events and will not apply to any other outside them. <\/p>\n\n\n\n In this light, parties might therefore want to take up both approaches when drafting force majeure clauses, listing the force majeure events and including a catch all phrase.<\/p>\n\n\n\n “The party must comply with procedural requirements under the contract such as to give notice of intention to rely on the clause to the other party within a particular period, including any formalities required for service of notices. Some clauses may also require updates to be provided and or an express obligation to mitigate” <\/p><\/blockquote>\n\n\n\n The\nclause may refer to performance as being \u2018prevented\u2019, \u2018hindered\u2019 or \u2018delayed\u2019\nby force majeure. A force majeure clause must therefore be interpreted with a\nclose attention to the words which precede or follow it, and with due regard to\nthe nature and general terms of the contract.<\/p>\n\n\n\n Enforcing\nForce Majeure Clauses<\/strong><\/p>\n\n\n\n The\nburden of proof in force majeure clauses is on the party wishing to exercise\nthe force majeure clause to show that the relevant event falling within the\nforce majeure clause occurred.<\/p>\n\n\n\n The\nparty must comply with procedural requirements under the contract such as to\ngive notice of intention to rely on the clause to the other party within a\nparticular period, including any formalities required for service of notices.\nSome clauses may also require updates to be provided and or an express\nobligation to mitigate.<\/p>\n\n\n\n The\naffected party must issue a force majeure notice to the other party. The notice\nmust stipulate in detail the nature of the force majeure, how it has affected\nperformance of its obligation and the estimated duration of the force majeure\nevent. <\/p>\n\n\n\n The\nnotice should be clear as the relief sought by the affected party. <\/p>\n\n\n\n A\nparty seeking to rely on a force majeure clause should show that: –<\/p>\n\n\n\n The\nparty receiving the notice may assess the claim and could agree to proceed on\nthe basis of force majeure. If a dispute arises, the contractual provisions may\nguide on the steps taken by the parties so as to resolve the dispute.<\/p>\n\n\n\n Misconception<\/strong><\/p>\n\n\n\n A\ncommon misconception is that the parties to a contract will be automatically\nrelieved from performing their obligations if some kind of disaster occurs.\nHowever, the English law doctrine of \u2018frustration\u2019 will only provide the\nparties with limited remedies and will only apply where performance is rendered\nimpossible.<\/p>\n\n\n\n The\nCovid-19 Virus and its relation to Force Majeure<\/strong><\/p>\n\n\n\n The\nWorld Health Organization declared the Covid-19 virus a pandemic, and on 14th<\/sup>\nMarch, 2020 Kenya confirmed its first case of the virus. Since then the\ngovernment has tried to contain the virus and has issued directives that have\naffected the general operation of business across the country. This means that\nperformance of contractual obligations by parties may have been put to strain,\nhindered or suspended in many contracts as a result of the government\ndirectives.<\/p>\n\n\n\n Contracting\nparties that have been affected by the current government directives due to the\nCovid-19 virus may therefore decide to invoke force majeure. This however will\nbe dependent on firstly, the existence of a force majeure clause in the\nparticular contracts and secondly the manner in which the clause is drafted,\nthat is, whether it provides for pandemics as force majeure events.<\/p>\n\n\n\n The\ncurrent state of affairs acts as an eye opener to parties intending to contract\nin coming days on the importance of embedding a force majeure clause in contracts,\nand having one that is keenly drafted, well defined and thoroughly inclusive.<\/p>\n\n\n\n Conclusion and Recommendations<\/strong><\/p>\n\n\n\n In\nthe current state of the effects of Covid-19 virus, affected contracting\nparties may invoke force majeure clauses in their contracts, complying with the\nprocedural guidelines in the contracts. <\/p>\n\n\n\n In\nthe event that the force majeure clause does not provide for the current\npandemic as a force majeure event, the parties can agree to find means of\nmitigating the effects.<\/p>\n\n\n\n A\nparty can also claim breach of contract in the absence of a force majeure\nclause where a party fails to perform\ntheir contractual obligations and does not notify the other party.<\/p>\n\n\n\n Force majeure is not a principle of law, and purely emanates from contractual terms. Parties in contracts therefore need to not only have a force majeure clause, but also be keen on its structure and drafting, especially with regard to the events to be covered under the clause in order to effectively provide relief to parties invoking it.<\/p>\n\n\n\n Ms Ingati is an Advocate of the High Court and a Senior Partner at Kazi Advocates. Email : aluso@kaziadvocates.com<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" Nairobi By Aileen Ingati Aluso Introduction Force majeure is a contractual term originating from the French civil law based on the Roman doctrine vis major meaning \u201csuperior force\u201d. The vis major concept was referred to as acts of God. The Black\u2019s Law dictionary defines it as an event or effect that can neither be anticipated […]<\/p>\n","protected":false},"author":4,"featured_media":568,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-567","post","type-post","status-publish","format-standard","has-post-thumbnail","category-kenya-news"],"yoast_head":"\n![\"\"](\"https:\/\/horizonnews.co.ke\/wp-content\/uploads\/2020\/04\/IMG-20200409-WA0021-1024x1017.jpg\")
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