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What is a Force Majeure Clause – and when can I Invoke it?

In life, there are a few things we can control and a lot of things we have absolutely no control over. There are things we can  — or should – anticipate, and things that blindside us. In business, the things we can’t control and don’t anticipate often spell disaster. This is usually the case when one party is contractually obligated to the other. And it is exactly why savvy professionals ensure that all contracts include a force majeure clause.

But what is that, and when can you invoke it? Keep reading to find out.

Defining force majeure in California law

As you may have guessed, “force majeure” is a legal term borrowed from the French. Roughly translated, it means “superior force.”

Aforce majeure clauseis a provision or stipulation in a contract. As such, it gives a conditional “out” to a party or parties who cannot fulfill contractual obligations in certain circumstances. Specificallyit excuses someone from fulfilling a contractual obligation because:

  1. Asudden, hazardous event they have no control over precludes them from doing something as promised.
  2. A sudden, hazardous event they have no control over makes fulfillment of the commitment unrealistic.

In most cases, a force majeure clause applies to the provision of goods or services. In the entertainment industry, however, it may also apply to personal and/or public appearances requiring travel.

Put most simply, the concept  can be summed up this way: “No man is responsible for that which no man can control.”

Which agreements include – or should include — a force majeure clause?

Technically, force majeure clauses can be, and are, written into any type of contract. However, there are some arrangements in which they are especially beneficial.  You may want to make sure there is a force majeure provision in place if you:

  • Are in the moving business
  • Are a caterer
  • Are in any business that requires regular travel
  • Are a commercial photographer
  • Are involved in any other business that involves the provision of goods or services

It is also important to ensure that any relevant contracts include a force majeure clause if you are planning a wedding, large business function, or community/charity event.

What prompts invocation of a force majeure clause in California?

Section 1511 of the Civil Code of California stipulates that the inability to fulfill an obligation or a delay in doing so may be excused by “an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States.”

Accordingly, a force majeure clause usually includes qualifying events. Common examples include but are not limited to:

  • Natural disasters/weather events – such as earthquakes, tornado, flash flooding, etc.
  • Widespread violence – such as acts of terror, riots, war, or similar armed conflicts.
  • National, regional or global public health crises – such as an epidemic or pandemic.

Any other events that can be legally classified as “acts of God” may also trigger a force majeure clause.

However, there is a significant catch. The provision in Section 1511 only applies when the parties have not expressly agreed otherwise.

And that’s not the only caveat. To prove that the non-fulfillment or delayed fulfillment of a contractual obligation was justified under a force majeure clause, the responsible party must prove that: 1) he or she had no way of knowing about the triggering event upon drafting the contract; and 2) that the triggering event made it impractical or impossible to fulfill the commitment on time, as promised.

Contact a Los Angeles force majeure clause attorney today

Clearly, the inclusion of a force majeure clause is something worth considering when you are party to a contractual agreement. In fact, it may be essential in light of what we learned during the worst of the COVID-19 pandemic.

As we have discussed, however, it does not provide an automatic “out.” Instead, it provides only conditional protection in the event of unanticipated and extreme circumstances.

To learn more, contact LawPLA by using the form here on our website, or give us a call to set up an appointment. We look forward to hearing from you soon.

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