Force Majeure
Dushyant Pandya
(Querist) 15 March 2010
This query is : Resolved
If contractor has constructed half of the building and Force Majeure event accure. Building was damaged due to Force Majeure and owner has terminated contract as contract was for complete building.
How will Contractor will recover his damages?
niranjan
(Expert) 15 March 2010
The contractor can file suit for damages.
Parveen Kr. Aggarwal
(Expert) 15 March 2010
The contractor may sue for recovery of the amount for which work was accomplished by him. However, this will be subject to the stipulation made in the force majeure clause in the agreement between the parties.
A V Vishal
(Expert) 15 March 2010
Force-Majeure Clause: A contractual provision allocating the risk if performance becomes impossible or impracticable as a result of an event or affect that the parties could not be anticipated or controlled .The expression 'Force Majeure' is the intention to save the performing party from the consequences of anything of the nature stated above or over which he has no control.
The requirements of Force-Majeure are:
(a) It must proceed from a cause not brought about by the defaulting party's default.
(b) The cause must be inevitable and unforeseeable.
(c) The cause must make execution of the contract wholly impossible.
The Force Majeure clause should be construed with a close attention to words which precede or follow it, and with regard to the nature and the general terms of the contract. Therefore, the words 'any other happening' in such a clause must be given ejusdem generis construction so as to engulf within its folds only such happenings and eventualities which are of the nature and type illustrated in the same clause with close attention to the nature and terms of the contract and would not reasonably be within the power and control of the party.
Where reference is made to Force Majeure, the intention is to save the performing party form the consequences of any thing over which he has no control. This is the widest meaning that can be given to Force Majeure.
Frequently, a number of events are specified and then followed by the words 'or any other causes beyond our control', Such general words in a commercial document are prima facie to be construed as having their natural and larger meaning. Clauses which excuse performance in general terms as may be construed as Force Majeure clauses. Thus, a clause in a contract of sale which provides that the date of delivery is approximate only, and that the seller is not to be responsible for any delay or non-delivery, does not confer upon him an absolute discretion whether to deliver or not and so render the contract nugatory, but only to excuse him if non-delivery is due to a cause outside his control. In the absence of a clear intention to the contrary, a Force Majeure clause will not be construed to cover events brought about by a party's negligence or willful default.
A Force Majeure clause which is prefaced by such words as 'while ever effort will be made to carry out this contract' will be rendered nugatory unless the party relying on it has in fact made reasonable efforts to ensure that the contract is performed.
Kumar Thadhani
(Expert) 16 March 2010
Clause Force-Majeure is very interpretated by expert MR.VISHAL
