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Force majeure clauses are both common and prudent

| Aug 3, 2020 | Civil Litigation |

Many contracts in Ohio and around the country contain what is known as a force majeure clause. Force majeure is a French term that means “greater force.” The contractual provision describes releases parties from their obligations in an agreement when performance is made impossible by unforeseen and unavoidable circumstances, such as new regulations or laws; the outbreak of war; a serious accident; or an act of God, like a natural disaster or an extreme weather event. Force majeure does not allow parties to escape their responsibilities simply because meeting them has become more difficult.

Force majeure may be raised as an affirmative defense in breach of contract lawsuits. When it is, the burden of proof is on the defendant to show that the circumstances that made performing his or her obligations impossible were beyond his or her control and not caused by an act of negligence on his or her part. Force majeure can only be argued successfully when the circumstances were unforeseeable. An extreme storm in a part of the country plagued by hurricanes would likely not be considered force majeure, but a flood in a relatively arid area probably would.

A notable case involving force majeure involved a dairy that became embroiled in a contract dispute after an explosion left it unable to fulfill its obligations. The court upheld the force majeure provision and released the dairy from the agreement after determining that the explosion was unforeseeable and not caused by negligence.

Attorneys with experience in this area could encourage their clients to insist on force majeure clauses when they enter into contracts, and they may recommend that these provisions be specific and not based on boilerplate language. Lawyers could also study existing agreements to determine if there are force majeure clauses, and they may advise their clients about their responsibilities in extreme circumstances if no such provisions are found.