International Construction Law Review
THE RISE AND RISE OF FORCE MAJEURE IN CONSTRUCTION
DR FRANCO MASTRANDREA*
Barrister
WHAT IS FORCE MAJEURE?
Whilst it seems that force majeure is recognised as a basic concept in contract of broad general application in civil law jurisdictions,1 it found no such role or application in the common law.2
So much so, that even when made the subject of an express contractual term, its ambit and application were regarded as neither certain,3 nor secure. Thus, McNair J held in British Electrical and Associated Industries (Cardiff) Ltd v
Patley Pressings Ltd and Others
4 that a provision that performance was to be “subject to force majeure conditions” was so vague and uncertain as to prevent any enforceable contract coming into being.
This was so even though in earlier cases some attempt had been made to wrestle with the term. See, for example, Matsoukis v Priestman & Co
5 in which Bailhache J held in relation to a contract to build a steamer that the force majeure exceptions clause in the contract extended to the disturbance of business caused by a national coal strike, but not to matters such as bad weather, football matches or funerals, as they were the usual incidents
* LLB (Hons), MSc, PhD, FRICS, FCIArb, Barrister. Franco is a mediator, adjudicator, expert determiner and arbitrator.
1 See, for example, article 1218 of the French Civil Code. Cf. article 273 of the UAE Civil Code, which provides that where force majeure renders a contract impossible of performance, the contract is automatically brought to an end.
2 See, for example, Jacobs, Marcus & Co v Crédit Lyonnais (CA) (1884) 12 QBD 589, involving a contract for the sale of 20,000 tons of Algerian esparto. By reason of an insurrection and consequent hostilities in Algeria, the constituted authorities prohibited the export of esparto from Algeria. The contract was held to be an English contract, to be construed and dealt with in accordance with English law. On that basis, as the contract did not expressly provide for force majeure relief, the defendant shippers were held liable.
3 See, for example, Hackney Borough Council v Doré (KBD) [1922] 1 KB 431 at p 437.
4 (QBD) [1953] 1 WLR 280 at p 283; [1953] 1 All ER 94. Cf. Thomas Borthwick (Glasgow) Ltd v Faure Fairclough (QBD (Comm)) [1968]1 Lloyd’s Rep 16, in which Donaldson J noted, at p 28: “the precise meaning of the term, if it has one, has eluded lawyers for years”.
5 (KBD) [1915] 1 KB 431. Cf. Lebeaupin v Richard Crispin & Co (KBD) [1920] 2 KB 714, in which McCardie J held in relation to two contracts for the sale of Fraser River salmon that the “subject to force majeure” exception in each extended to war, inundations and epidemics, but not the defective tins purchased in respect of the one, and the deliberate choice, or their own error of judgement in respect of the other. On neither count was the supplier, who could through the contractual chain have secured damages against the canneries, entitled to rely upon force majeure.
Pt 1] The Rise and Rise of Force Majeure in Construction
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