Q: What is a “force-majeure” clause?
A: There is really no pithy way to start to answer that question. I thought of making a wise-crack that this is a word used to describe powerful attorneys (they are a “major force”), but thought the pun was too much to take, even for me. Then, it occurred to me to reference the French film of the same title made in 1989, starring B-class actors and F-class plot, but that certainly does not aid in our understanding of the term.
The only way to answer the question, it would seem, is to tell you what it literally means, then illustrate by means of a hypothetical, and make some profound insight as to its importance. All of this, of course, is done in the hopes that you can sound oh-so-smart when your cable Internet company calls to confirm your contract.
According to Black’s Law Dictionary, a “force majeure” is, literally, “a superior force.” The word is of French origination and is properly pronounced, “fors ma-zhur.” (Actually, that “u” should be a schwa, but I am an attorney, not a phoneticist.) The term describes an unanticipated event that cannot be controlled. When used in the confines of a contract, the “force-majeure clause” not only becomes hyphenated, it arrives at a precise meaning: a clause that allocates the risk if the performance upon the contract becomes impossible, impractical, or improbable because of unforeseen, unanticipated, and uncontrollable forces.
Now isn’t that clear as mud?
Ok, time for the example. Say you contract with my shipping company to ship your Yugo to your winter home in Iceland. We agree that I will package and ship via container ship your Yugo and you agree to pay me a bazillion dollars to do so.
Sidebar: Like you, I thought the word “bazillion” was just a word made up and used by five year olds to describe a lot of money. Actually, it is a real word meaning, “an infinite number.” Aha! My goal of earning a bazillion dollars is still viable! End sidebar.
Of course, being an astute attorney and businessman, I insist on having a “force-majeure clause” included on one of the bazillion pages of our contract. We sign it, you pay me, I package your Yugo in one of my containers, and put it on my ship. Unfortunately, midway to Iceland, the perfect storm hits my ship. Of course, with George Clooney at the helm, my ship steers directly into a wave, is swamped, and your subcompact Yugo sinks and becomes the newest, and smallest, reef on the floor of the Atlantic Ocean.
Luckily, the “force-majeure clause” is going to protect me. You see, neither of us could have possibly conceived at the time of contract that the perfect storm, causing a Empire State Building-sized storm to swamp my well-steered ship, was going to hit my ship and sink your Zastava Koral. Such an event was unforeseeable, unanticipated, and uncontrollable and, because I am not going to swim to the bottom of the North Atlantic and drive your Yugo to Iceland, performance upon the contract has become impossible. How either of us is compensated for the loss (you of the Yugo, me of the money to ship said Yugo) will be determined upon the verbage of the “force-majeure clause.”
A “force-majeure clause” protects both parties from the unpredictable. It acknowledges that God often sticks his finger into His creation and prevents the performance of a contract. Even if the chances are just one in a bazillion!
Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.
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