Force majeure in construction
The term ‘force majeure’ comes from French law, where it translates as 'superior force' (as opposed to ‘vis majeure’ or ‘vis major’ which refers to an act of God). Whilst in France, the term has a defined legal meaning, in English law it does not, and it is dealt with in different ways by different forms of contract.
Very broadly, it relates to exceptional, unforeseen events or circumstances that are beyond the reasonable control of a party to a contract and which prevent or impede performance of their obligations under the contract. Generally it cannot be an event that the party could reasonably have avoided or overcome, or an event attributable to the other party.
Clauses referring to force majeure attempt to set out the circumstances to which the term applies to and prescribe how such situations should be treated. Depending on the provisions of the contract, the following may be considered to constitute force majeure:
- Unforeseen changes to legislation.
- Wars and other hostilities (such as terrorism).
- Fires.
- Exceptionally adverse weather.
- Civil unrest, such as riots or revolution.
- Strikes (other than by the contractor or subcontractors).
- Natural catastrophes such as earthquakes, floods and volcanoes.
- Epidemics or pandemics.
In some contracts, force majuere is considered a 'relevant event', that may allow the contractor to claim an extension of time if they have been prevented or impeded from performing their obligations under the contract. Although, if the contractor has continued to perform their duties, despite the occurrence, they may not be able to make a claim.
As these conditions tend not to be defined, it can be difficult to determine whether they have arisen or not. For example, when does a virulent virus constitute an epidemic? This has become particularly significant in recent years due to the increasing number of exceptionally adverse weather events (in particular flooding), as well events such as foot and mouth, swine flu and restrictions on air travel due to volcanic ash clouds.
Whilst clients will generally accept the contractor cannot perform their duties under the contract where there is genuine force majeure, problems arise when the client believes the contractor is unnecessarily claiming force majeure for commercial gain and that the situation could have been foreseen, avoided or mitigated. Disputed claims are particularly common in relation to exceptionally adverse weather as the term is not always defined.
Force majeure clauses need to be flexible enough to cover events which are by their very definition are unforeseeable, but specific enough to prevent disputes arising.
Some forms of construction no longer use the phrase force majeure, but instead include clauses to deal with the specific circumstances that might arise.
In situations where a contractual obligation becomes incapable of being performed, the occurrence might be considered to be a 'frustration event' resulting in termination of the contract. Frustration occurs when circumstances that are not the fault of either party mean it is impossible to continue with the contract. The contract will come to an end without any party being considered to be in breach.
For more information, see Frustration.
NB The Chartered Institute of Procurement & Supply (CIPS) Glossary of procurement terms, defines a force majeure as: ‘Circumstances that cannot be foreseen which prevent a contract from being fulfilled.’
[edit] Related articles on Designing Buildings
- Breach of contract.
- Clear contracts during uncertain times.
- Compensation event.
- Concurrent delay.
- Consequential loss.
- Coronavirus and force majeure.
- Exculpatory clause.
- Exigency.
- Extension of time.
- Neutral event.
- Frustration.
- Liquidated damages.
- Loss and expense.
- Relevant event.
- Termination.
[edit] External references
- Matsoukis v Priestman & Co (1915).
- Lebeaupin v Crispin (1920).
Featured articles and news
A threat to the creativity that makes London special.
How can digital twins boost profitability within construction?
The smart construction dashboard, as-built data and site changes forming an accurate digital twin.
Unlocking surplus public defence land and more to speed up the delivery of housing.
The Planning and Infrastructure bill oulined
With reactions from IHBC and others on its potential impacts.
Farnborough College Unveils its Half-house for Sustainable Construction Training.
Spring Statement 2025 with reactions from industry
Confirming previously announced funding, and welfare changes amid adjusted growth forecast.
Scottish Government responds to Grenfell report
As fund for unsafe cladding assessments is launched.
CLC and BSR process map for HRB approvals
One of the initial outputs of their weekly BSR meetings.
Architects Academy at an insulation manufacturing facility
Programme of technical engagement for aspiring designers.
Building Safety Levy technical consultation response
Details of the planned levy now due in 2026.
Great British Energy install solar on school and NHS sites
200 schools and 200 NHS sites to get solar systems, as first project of the newly formed government initiative.
600 million for 60,000 more skilled construction workers
Announced by Treasury ahead of the Spring Statement.
The restoration of the novelist’s birthplace in Eastwood.
Life Critical Fire Safety External Wall System LCFS EWS
Breaking down what is meant by this now often used term.
PAC report on the Remediation of Dangerous Cladding
Recommendations on workforce, transparency, support, insurance, funding, fraud and mismanagement.
New towns, expanded settlements and housing delivery
Modular inquiry asks if new towns and expanded settlements are an effective means of delivering housing.