One of the things that makes contracts so fun for practitioners (and so bothersome for users) is that once you’ve gone through all the work of getting a contract set up just the right way, it can still get all messed up!
Although I have already briefly addressed some common ways to get out of a contract, I haven’t touched on any of the more obscure methods for avoiding contractual obligations. So today I will be briefly exploring the concept of force majeure, and its related concept, Acts of God.
Force majeure is an excuse for non-performance of a contract, and generally encompasses circumstances beyond the control of the parties that keep one or more of them from performing their duties. Some typical examples of force majeure circumstances are war, labor union strikes, riots, crimes, or Acts of God. For instance, there is currently a drought in Russia that is causing wheat shortages. Consequently, Russia is canceling its wheat exporting contracts on the basis of force majeure, due to their worst drought in 130 years, which is an Act of God.
Generally, though, force majeure is not premised on Acts of God (although it is fun to think about God interposing himself in our contractual relationships). Recently, Southwest Airlines got itself a bit of press for revising its force majeure clause for its Contract of Carriage. (For more on contracts of carriage, check out a past post on Delta Airlines.) It initially included “mechanical difficulties,” which many people scoffed at, given that the proper functioning of their planes is directly within their control. Since then, Southwest has clarified that they meant mechanical difficulties outside their control, which would be congruent with force majeure. They have also revised their definition in their updated Contract of Carriage, which is a very good example of a force majeure clause:
Force Majeure Event means any event outside of Carrier’s control, including, without limitation, acts of God, meteorological events, such as storms, rain, wind, fire, fog, flooding, earthquakes, haze, or volcanic eruption. It also includes, without limitation, government action, disturbances or potentially volatile international conditions, civil commotions, riots, embargoes, wars, or hostilities, whether actual, threatened, or reported, strikes, work stoppage, slowdown, lockout or any other labor related dispute involving or affecting Carrier’s service, mechanical difficulties by entities other than Carrier, Air Traffic Control, the inability to obtain fuel, airport gates, labor, or landing facilities for the flight in question or any fact not reasonably foreseen, anticipated or predicted by Carrier.
But as is the question with any contract concept explained on this site, the real question is: Why should you care?
Because force majeure clauses allow for nonperformance, you should pay particular attention to what is included. The reason people were so concerned with Southwest’s initial revision is that it made it seem that if Southwest had a mechanical issue of its own, that would excuse it from honoring its contract (i.e., its ticket) with the passenger. That’s a pretty easy way out of a contract once the money has been paid.
So start looking for force majeure or Acts of God clauses in the contracts before you sign them. They are easy methods for getting out of a contract, and you should be sure that you think they are reasonable before signing.
About Graham Martin
Graham Martin is a solo practitioner focusing on Contract law (including drafting, review, and litigation). He operates Martin Legal Services, LLC in the Minneapolis-St. Paul area.
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