A “force majeure” clause is a contract provision that relieves the parties from performing their contractual obligations when certain circumstances beyond their control arise, making performance commercially impracticable or impossible. In Louisiana, absent agreement to the contrary, force majeure excuses parties from liability when they fail to perform due to a fortuitous event that makes performance impossible. So, in determining whether the doctrine applies, it is necessary to determine (1) whether performance is impossible and (2) whether the impossibility was caused by a fortuitous event. Here are a few things to consider when confronting force majeure issues:
- In many commercial transactions, force majeure issues have been addressed in the contract, so it is important to obtain and review the contract.
- Many contractual provisions and some statutory provisions require a party that is claiming force majeure to notify the other parties to the contract of the event of force majeure. Some provisions require “prompt,” “timely,” or “seasonable,” notice. Therefore, it is important to determine promptly whether there is a notice requirement in your client’s situation. Don’t just assume that because everyone knows about the 2016 flooding in Baton Rouge and surrounding parishes, notice provisions can be disregarded.
- Some force majeure provisions or situations may totally relieve a party of an obligation to perform a contractual obligation. Other situations may merely suspend or delay the time for performance. It is important to determine which is applicable in a particular situation.