Don't Follow the Herd -- Generic Force Majeure Clauses May Spell Disaster for Your Clients
A busy transactional lawyer may quickly download an online contract form (or photocopy a contract from one of those old dusty law books) when a client calls and needs a business agreement drafted immediately. That form contract will likely include a generic force majeure provision. But beware—that force majeure clause may expose the client to enormous risk if it is not tailored for the specific transaction at hand. Specific advice on how to protect your client from unanticipated, supervening events without using a generic force majeure clause, as well as drafting advice when use of the clause is appropriate, is provided in Drafting Advice: Avoiding Disastrous Force Majeure Clauses in the LexisNexis Lexis Practice Advisor Journal™.
Rather than utilizing a force majeure clause, the client may be better served with relying upon two related gap-filler doctrines: the doctrine of impracticability (sometimes still referred to as impossibility) and the doctrine of frustration of purpose. The article reviews how these two doctrines developed in English common law and provides a cogent warning from Judge Richard Posner that a poorly drafted force majeure clause may defeat the protections afforded by these doctrines.
If an attorney concludes that her client will be best served with a force majeure clause in a contract, the author offers drafting advice that includes:
- Don’t Mirror the Doctrine of Impracticability
- How to List General Force Majeure Events
- Talk to Your Client about Specific Force Majeure Events
- Include a Catch-All Clause with Those Listed Events
- Spell Out How Certain Supervening Events are Dealt With
- Require Notice by the Non-Performing Party
As the article points out, there are no shortcuts to meticulous drafting when it comes to force majeure clauses. And remember – judges never complain that a contract is too clear; they only struggle with enforcing ambiguous clauses and contracts.
This article, written exclusively for the Lexis Practice Advisor Journal by Timothy Murray, a partner in the Pittsburgh law firm Murray, Hogue & Lannis and the co-author of the Corbin on Contracts Desk Edition (2017) and the biannual supplements to Corbin on Contracts, contains relevant case law to assist transactional practitioners in responding to the requests and concerns of their clients.
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