Once again, into the breach …As we prepare for what weather forecasters are swearing will be a foot or foot-and-a-half of snow (I’ll believe it when I’m shoveling it off of my driveway), it got me thinking about snow and force majeure clauses in contracts. Yes, unfortunately, instead of sledding or snowball fights, that’s where the lawyer’s mind goes. Oh for the days of Calvin-esque excitement at the prospect of a heavy snowfall.
But I digress …
Force majeure clauses are those long paragraphs in contracts which refer to all sorts of horrible things which could happen, but likely won’t. For example, one picked at random from my files includes “acts of God, actions by any government authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, acts of terrorism, or court injunction or order.” The term, adopted from the French for “superior force,” is meant to cover external events or circumstances which prevent timely performance of a party’s contractual obligations. The key issues are typically whether it the event prevents performance and whether the party in question has any control over the event or circumstances which caused the impossibility.
As with so many other areas of contract law, US lawyers have added language to these clauses which would seem to deviate from the original idea of an obstacle which simply could not have been foreseen or prevented. As one blogger noted, the drafting of these clauses has become “a kind of arms race, with drafters throwing in ever more scenarios [which] evoke someone’s fevered vision of the apocalypse. I half expect to see, one of these days, ‘the Rapture’ added as an element.” Frankly, I’m sure the Rapture has been added to one of these clauses before, although I don’t recall having seen it.
At any rate, that brings us back to snow. The coming snowstorm, as predicted, would probably qualify as a force majeure in this area, since it’s well beyond the norm (whatever that means for weather these days) and could well close many roads for 24 to 48 hours. Of course, whether that actually prevents timely performance or not depends on what you do for a living. As a lawyer, I can generally complete my work from my kitchen table if need be, so it would take more than just a snowstorm to prevent performance of my obligations unless the internet goes down. Construction workers, road workers, or others whose work depends on travel may well have an argument that force majeure resulted in a delay for which they should be excused. Where possible, parties to a contract should try to mitigate the effects of the force majeure wherever possible (as our milk delivery people are doing today by delivering our milk a day early, thanks, by the way). Fortunately for the local construction industry, the mild winter means many contractors are ahead of schedule, so a day or two of interruption might not matter as much. In that case, they may be fretting for bonuses lost because they can no longer finish as early as they might have, but that’s a topic for another post.
If it snows tomorrow, I plan to settle in in front of the fireplace with a hot coffee or tea and perform my obligations as best I can. Of course, that’s reckoning without the interference of a force majeure beyond anyone’s control, namely, my children, who will likely be home from school.