Next time you review an onerous contract, make sure to include this force majeure provision in your mark-up.
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A Force Majeure Clause for the New Millennium
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This post reminded me of a funny force majeure story (hard to believe) from a few years ago. I was in house at AT&T at the time and we had received a software development contract from a company that I thought was quite unacceptable. Rather than just scrap it, however, I left the structure in place and just revised many of the key provisions. Once I was done I read through the boilerplate, to make sure there was nothing of concern in the provisions that usually were noncontroversial. Sure enough, the force majeure clause referred to “acts of God or any other deity.” It was the first time I ever had a theological question in a contract. To boot, since it called for California law to be applied I was particularly concerned. After amusing myself by showing the clause to all of my colleagues, I struck the phrase “any other deity” and the other side accepted the change without a word.
While not finding a clause such as the one featured above; I have found clauses that include detailed exclusions from force majeure relating to known weather conditions. These clauses are common in the Pacific Northwest but may be a harbinger of the future as global warming changes the climate in the Midwest.
I also saw a clause once where the party who did not recieve performance due to the other side’s force majeure problems wanted to be compensated for the extra expense they incurred by going to another vendor. So what was the point of the clause in the first place.