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Can you use the force?

Author : Kate Mayor, Vertex Law

21 September 2011

August’s widespread looting and rioting has brought the implications of the force majeure non-performance contract clause to the fore

The rioting in London and major cities across the country will have inevitably interfered with some food sector businesses' ability to fulfil their contractual obligations, with police blockades and road closures preventing hundreds of suppliers from delivering their goods.

Those businesses may now look to force majeure (FM) provisions in their contracts to excuse their non-performance.

The clause, which translates as ‘superior force’, typically excuses one or both parties from delivering on its contractual obligations, either in whole or in part, following unexpected events or circumstances outside that party's control.

These events include violence, riots, strikes and civil commotion but also stretch to include ‘acts of God’ such as flooding, earthquakes and even volcanic eruptions.

If your business supplies goods or services and your ability to deliver has been affected in any way as a result of the riots, check your contractual arrangements to see if it includes an FM clause. If it does, carefully read the exact wording and ensure you comply with any notification requirements and so on, to enable you to benefit from its protection. Some contracts may require the company to notify the customer within a certain period or do all it can to minimise the disruption to the other party.

Absence of an FM clause would leave the supplier in breach, assuming its obligations are clearly set out in the contract. If you are a customer who has suffered late or no deliveries as a result of these recent events, again, check the wording of your contract carefully to see if you might be able to take further action.


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