Force majeure

Force majeure is a French word which means ‘superior force’. It is a happening of inevitable
incident which the parties in spite of taking due care and caution could not have reasonably
foreseen. Force Majeure is a principle against contractual rigidity enshrined in the French Code
Civil1. The most important factors that constitutes force majeure are-
1. It was completely beyond the parties' control and they could not have prevented its
consequences.
2. Party could not have reasonably foreseen it, in spite of taking due care and caution.
3. It can occur with or without human intervention.
In India, Indian Contract Act, 1872 does not expressly provides force majeure provisions. It is
the evolution of case laws that has led to development of this doctrine. Supreme court of India
has held that the expression “force majeure” is not a mere French version of Latin expression
‘vis major’. Force majeure has a wider term. Quintessentially, force majeure clauses cover
occurrence of events like a riot, strike, war, crime etc. or events which are Act of God i.e.
natural disasters like earthquake, hurricane, flood, volcanic eruptions, flood, etc.
The quintessential element of force majeure clause in contracts is to save the performing party
from the consequences of anything over which he has no control. Once the conditions for
invocation of force majeure clause were shown to exist, the burden was on the other party to
show when such conditions ceased to exist.
In the case of Southern Gas Ltd. V Visveswaraya Iron & Steel Ltd.2 Supreme court held that in
the situation where force majeure clause exists in the agreement relieving parties of their
obligations, the arbitrator has to first determine the applicability or otherwise of the force
majeure clause and proceed to determine other questions only in case he finds force majeure
clause to be inapplicable.’ There are various case laws regarding utility of force majeure clause
in contracts. With changing period of time, the utility of force majeure clause has also increased
and it is nowadays very important to include the force majeure clause in contracts.

Name- Arushi Agarwal

University- Dharmashastra National Law University, Jabalpur
Course- B.A. LLB (Hons)
Section- A

1
French Code Civil Articles 1147 and 1148
2
(1998) 9 SCC 555 Southern Gas Ltd. v Visveswaraya Iron & Steel Ltd.