CT Project Resources and Research

CT PROJECT RESOURCES
PART I/II- https://www.scconline.com/blog/post/tag/force-majeure/ - start from this blog please
https://cdn.theforage.com/vinternships/companyassets/JeNXKMH9EfMTGMcPN/Task%204%20-
%20Memo%20Additional%20Information.pdf – this vvv imp for part 2 and 3
https://www.pslchambers.com/wp-content/uploads/2020/04/Covid-19-and-Commercial-Contracts-
Is-Force-Majeure-Invocation-the-Panacea-or-another-Pandemic.pdf - v imp for Indian jurisprudence
wala
https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=3495&context=vlr – This has a

lot- history, frustration and impossibility etc, Most imp- fact that common law excuses not available
anymore if F.M there in contract- put it in part I
https://nludelhi.ac.in/UploadedImages/be41ba6a-5b69-401a-af05-0496ff3d942f.pdf - has very

thoda about EG but fm in general a lot plus UNIDROIT AND PECL
http://www.austlii.edu.au/au/journals/AUMPLawAYbk/2004/17.pdf - VVV IMP! Has frustration and

FM, notice wagera, a LOT about mitigation (see if wanna include that)
PART III
https://files.essexcourt.com/wp-content/uploads/2018/05/08152815/Common-Issues-with-Force-
Majeure.pdf
Imp for- part 2- also has Does there have to be physical or legal impossibility, or is increased
difficulty sufficient?
https://www.venable.com/insights/publications/2020/03/interpreting-force-majeure-clauses
https://www.mondaq.com/litigation-contracts-and-force-majeure/956170/what-is-force-majeure-
and-the-interpretation-of-clauses-and-events
https://www.law.ox.ac.uk/business-law-blog/blog/2021/04/covid-19-quandary-does-force-majeure-
clause-displace-frustration - imp read
file:///C:/Users/PIYUSH/Downloads/alr,+37-2_7_Paulus_and_Meeuwig.pdf – please read whole,

especially relation of FM with common law- imp for part I (no this has for listy of evens wagera )
https://content.next.westlaw.com/practical-law/document/
Iaadd46d2fba611e79bf099c0ee06c731/Dealing-with-the-unknown-in-contracts-frustration-and-
force-majeure?
viewType=FullText&transitionType=Default&contextData=(sc.Default)&firstPage=true – imp for
frustration
https://www.qmul.ac.uk/ccls/media/ccls/docs/research/TCLR-1-Force-Majeure-and-International-
Supply-Contracts.pdf - seems kinda imp? Read if time, has a lot of cases but idk if worth including
CT PROJECT PLANS
Incase of missing term- ejusdem generis, plus general concept (use covid example)
In case of ambiguity- contra proferentum plus restrictive interpretation (use example of government
in UPES prop)
However can say restrictive interpretation doesn’t mean literalist interpretation- judicial discretion
not totally limited.
Sub- topics-
FM is general plus non-exhaustive plus liberal interpretation - giving broader meaning
Contra proferentum plus restricti
- Contra proferentum
- Restrictive interpretation vs liberal interpretation
- Ejusdem generis
- Non exhaustiveness of the contract
- A general principle not dependent on express contractual provisions
https://www.scconline.com/blog/post/2022/07/01/call-for-papers-rmlnlu-law-review-volume-xiii/
file:///C:/Users/PIYUSH/Downloads/forcemajeureclauses.pdf
- has a para on ejusdem generis
https://admin.thompsonhine.com/wp-content/uploads/1137/doc/
ForceMajeureCommercialContracts.pdf - has case example of E.G
EJUSDEM GENERIS RESEARCH
ForceMajeureCommercialContracts.pdf
Within the catch-all provision, courts are guided by the interpretative doctrine of ejusdem generis,
which provides that the catch-all is limited to the same general kind or class of those things which
are specifically mentioned. TEC Olmos, 555 S.W.3d at 185. An example- Although the interpretation
of any clause would be highly fact-specific, the Virginia Supreme Court has held that a force
majeure provision excusing performance because of “breakdown, fire, high water, washout, or
from any other cause whatsoever beyond its control” did not apply to an illness of the workers
because, applying ejusdem generis, that the purpose of the clause was to protect against physical
disability of the factory. Standard Ice Co. v. Lynchburg Diamond Ice Factory, 129 Va. 521, 532
(1921)
https://www.allenovery.com/en-gb/global/blogs/compact-contract/will-covid-19-trigger-a-force-
majeure-clause-under-my-contract
1. Most force majeure clauses contain a list of events which will constitute a force majeure
under the contract. The ejusdem generis principle (lit. "of the same kind") may mean that
COVID-19 (and/or any measure to deal with it) will be held to be within the scope of a force
majeure clause only if it is of the same "type" as the events listed in the clause. However,
this will ultimately be a matter of interpretation (eg the list may or may not be exhaustive)
and the principle can relatively easily be disapplied. For an example of the types of
difficulties that can arise see Tandrin Aviation where the court held, "Whilst there is no
requirement to construe the phrase "any other cause beyond the Seller's reasonable
control" ejusdem generis with those earlier specific examples, it is telling that there is
nothing in any of those specific examples of force majeure in [the clause] which is even
remotely connected with economic downturn, market circumstances or the financing of the
deal".
2. An "act of God" has been held to include "… something overwhelming such as storms,
lightning, and tempests, which could not happen by the intervention of man" and "an
extraordinary circumstance which could not be foreseen, and which could not be guarded
against". (not needed)
Beyond the Contractor’s Control” https://www.lexology.com/library/detail.aspx?g=781ece83-

5940-4999-a771-342ea8a55ee2 – plz check out this link has a lot of imp stuff about other stuff as
well
5 Unsurprisingly authors of contracts find it difficult to list every event which may have an impact on
the Contract, and Force Majeure clauses normally contain a list of events, with a sweep up phrase
such as “… and any other clause beyond the Contractor’s reasonable control”. Some commentators
state it is not clear whether the ejusdem generis rule, whereby general words are interpreted by
reference to the surrounding words, applies to Force Majeure clauses. I believe it does not.
6 In a case where a clause which exonerated a party to a contract “In the case of strikes, lockouts,
civil commotions, or any other causes or accidents beyond the control of the consignee”,3 it was
held that “… strikes, lockouts” still had to be “beyond the control of the consignee”.4
7 However, the ejusdem generis rule does not automatically apply to all commercial contracts;
Courts will look at the parties’ intentions and give general words a wider meaning not restricted to
the proceeding words, if this is what the parties intended.5 In a case where the purchase of an
aircraft did not have to proceed under a list of Force Majeure events which included “… any other
cause beyond the Seller’s reasonable control”, the Judge did not apply the ejusdem generis rule (but
still felt it was telling that nothing in the earlier list of examples had anything to do with the
economic downturn, and therefore the collapse of the financial markets did not trigger the Force
Majeure Clause6).
8 There are a number of cases that suggest general words in commercial contracts are prima facie to
be construed as having their natural meaning and are not limited by the ejusdem generis rule.7 In a
Singapore case which exonerated one of the parties due to: (This one not needed)
“(iv) Accident at the mines, railway or port; …
(viii) Partial or Total interruptions on railways or port; …
(x) Any cause of whatsoever kind or nature, beyond the control of the Seller,”8
it was held that each of the reasons given were standalone events which could amount to Force
Majeure, and there was no need to qualify any of the earlier sub-clauses by the need for the events
being “beyond the control of the Seller”.
9 Whether or not the ejusdem generis applies to Force Majeure clauses may be significant to the
Force Majeure provisions within a JCT Contract – see below.
https://indiankanoon.org/doc/1590593/ - this case might be imp
https://marinbar.org/news/article/?type=news&id=550
While omission of such language is rare, one more hurdle exists to the use of catchall language: In
addition to only the most extreme events being considered force majeure, California generally
adheres to “the canon of construction known as ejusdem generis.” (Sears, Roebuck & Co. v. San
Diego Cty. Dist. Council of Carpenters, (1979) 25 Cal. 3d 317, 330-331.) This term literally means “of
the same kind.” The implication is that an unenumerated event must be similar to enumerated
ones to qualify.
Guidance applying the principle of ejusdem generis to force majeure specifically can be found in New
York caselaw, which holds: “When the event that prevents performance is not enumerated, but the
clause contains an expansive catchall phrase in addition to specific events…words constituting
general language of excuse are not to be given the most expansive meaning possible, but are held
to apply only to the same general kind or class as those specifically mentioned.” (Team Mktg. USA
Corp. v. Power Pact, LLC (3d Dept. 2007) 41 A.D.3d 939, 942-943.)
https://www.stewartslaw.com/wp-content/uploads/2020/05/Force-majeure-%E2%80%93-litigation-
in-the-wake-of-Covid-19-Answers-to-Webinar-....pdf
CONTRACTUAL MEANING OF FORCE MAJEURE QUESTION 1 Would leaving out a list of force majeure
events make a force majeure clause broader (ie from an ejusdem generis point)? So, would simply
saying “events outside control” be more likely to cover Covid-19 than a clause with a list that does
not cover “disease”? In principle, the answer to this question is “yes”. When determining whether or
not a particular force majeure clause covers a specific scenario the court is essentially seeking to
establish what the words of the agreement mean. In other words: what did the parties agree? The
ejusdem generis principle is one of the tools the court uses. This principle essentially says that where
general wording follows a list of prescribed events or specific items, the general wording will be
interpreted in the light of the specific list of events or items. For example, if a contractual clause said
“apples, pears, oranges or other things”, it is likely that a court would interpret the “other things” as
being other things of the same type. It is unlikely that this clause could successfully be applied to
aeroplanes. So, in principle, if the clause includes a list of events that do not include diseases or
epidemics, then the court is less likely to find that the general term “events outside control” includes
Covid-19. By contrast, if the clause simply referred to “events outside control” without a list, then
the ejusdem generis principle is less likely to be used to say that the clause was not intended to
cover Covid-19.
https://chambers.com/articles/a-practitioner-s-guide-to-covid-19-related-force-majeure-disputes
has stuff on eg see if imp
https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=3495&context=vlr
In light of this, a drafter will often include sweep-up language to ensure that any list of events is not
treated as an exhaustive list. There is a concern that another rule of contract interpretation might
apply. Under ejusdem generis (Latin for “of the same kind”), a general word is assumed to be
qualified by preceding examples which are of a common category. However, ejusdem generis does
not automatically apply to clauses in commercial documents.. In Tandrin Aviation Holdings Ltd and
Aero Toy Store LLC and others [2010] EWHC 40, a party argued that the economic collapse of
financial markets triggered the force majeure clause and prevented it from completing its
purchase of aircraft. It was held that the sweep-up phrase “any other cause beyond the Seller’s
reasonable control” had to be read in the context of the entire clause. The judge noted that while
there was no requirement to construe it ejusdem generis with earlier specific examples of force
majeure events, he thought it was telling that nothing in the earlier list of examples was even
remotely connected with economic downturn.
Courts have historically interpreted force majeure clauses extremely narrowly; courts frequently
reject claims of force majeure and rarely hold that a party should be excused from a contract on this
basis.110 If the force majeure clause specifically includes the event that actually prevents
performance, then performance will be excused.111 When a clause lists specific events that would
excuse nonperformance, then courts will excuse only the events that are specified.112 If a clause is
worded more broadly or includes a catchall phrase, courts will look to the rest of the contract to
determine the scope of the force majeure clause, and will apply greater scrutiny to alleged force
majeure events that are not specifically listed.113 Following the doctrine of ejusdem generis,
“general words are not given an expansive meaning; they are confined to things of the same kind or
nature as the particular matters mentioned in the non-exhaustive list.”114 The principle of ejusdem
generis prevented a nonperformance defense in Kyocera Corp. v. Hemlock Semiconductor, LLC. 115
Even though the contract in Ky ocera contained a force majeure clause that included “acts of the
government,” the court determined that no force majeure event had occurred when a “trade war”
between the United States and China resulted in dramatic price fluctuation for solar panel
parts.116 After considering the contract as a whole, the court concluded that that honoring the
force majeure event would “nullify a central term” of the contract.117
https://jssbarristers.ca/assets/COVID-19/Duguid-Eadie-Interpreting-Force-Majeure-Clauses-FM-3-
02311601.pdf
Where a force majeure clause uses a word like “including” before a list of events, that generally
means that the definition is not exclusive, and that the clause may apply to circumstances not
explicitly listed. The standard rules of contractual interpretation apply to interpreting these lists,
including the ejusdem generis rule. This rule may be engaged where a contractual clause contains a
general word or definition followed by a list of specific items, to limit the general word to only
those of “the same class or kind of occurrence” as those listed specifically. However, the rule may
be inapplicable where the words “including but not limited to” are used before the list of
events, or where the list contains a broad catch-all at the end . For
instance, in World Land, the Court held that the ejusdem generis rule did not apply to a force
majeure clause because it contained a catch-all for “any other causes […] beyond the control of
the vendors or the purchasers” at the end of the list, and because the specific events listed were
not of the same kind or character. (give an example) Therefore, depending on the wording of the
clause and contract as a whole, it may be possible to rely on a force majeure clause to forgive failure
to perform contractual obligations as a result of COVID-19, even if a pandemic (or similar event) is
not specifically listed in the clause. However, where a force majeure clause contains a closed list of
qualifying events, given the Courts’ narrow approach to interpreting force majeure clauses, it is
unlikely that other events would be interpreted as triggering the clause, even if beyond the parties’
control. In fact, the Alberta Court of Appeal has cautioned that “a broad list of force majeure
events offers the risk of turning the bargain on its head if it can be used as an escape clause,” and
therefore broad lists are to be read narrowly (use in restrictive interpretation).
(from FM waali book) FORCE MAJEURE WAALI BOOK.pdf – check out cases on pg 192-194
In the case of World Land v Daon, the Alberta court considered the application of the ejusdem
generis principle to limit the scope of a basket clause based on the list of specific events.489
However, the court held that the list of events were not all of the same group of similar events so
as to the application of the principle. Some acts were of human based and some from nature, so
they are not from the same genus. It is noted that while the courts are prepared to give a broad
definition to a force majeure clause they will be quite cautious to allowing the clause to be an
escape rout
Use below for restrictive interpretation-
In Atcor the court stated its concerns regarding a contract with a very broad list of events. In such
case the event does not need to be an ”act of God” or a catastrophe. Only a simple miscalculation in
entering the contract could yield to a force majeure. With a broad list of force majeure events in a
contract there are risks that the bargain is turned around.”490 The court further found that when
the list of force majeure events is broad it would be important to look at the other elements of the
clause, such as its impact and legal effect. Those shall have to be drafted and interpreted in such a
way to put reasonable limits on the application and extent of force majeure. It is also to be noted
that there is no rule of law which requires a narrow interpretation of a force majeure clause
against the party relying on such clause.491 Sometimes the courts do apply a strict construction of
the clause. The rationale is because sometimes the clause is considered as an exclusion of liability
clause and this requires a strict interpretation against the party relying on this clause to avoid
liability.492 Another important reason is because of the difficulty in drawing a line between
Frustration and force majeure. This requires the impossibility of performance to be applied to a
force majeure clause.493 (citations have case laws)
https://www.uniselinus.education/sites/default/files/2021-06/Tesi%20Chelumbrum.pdf – EG FROM
THIS IS VVV IMP
ADD to RESTRICTIVE INTERPRETATION
FORCE MAJEURE WAALI BOOK.pdf
The Association of International Petroleum Negotiators provide a good example of the optional
tailored events of force majeure which include the supply and purchasing chain issues. In that
example the “failure of Gas Transporter to take delivery of and transport Gas, through the
Transporter’s pipeline system would constitute a Force Majeure Event as defined in this Agreement
provided the Gas Transporter were a Party to this Agreement.”474 Another problem that may arise
here is the exact wordings of the basket clauses. In modern contracts it will generally be referred to
as any other clauses beyond the control of the contracting parties. Quite often parties seek a very
broad interpretation and would add different wordings such as “without limitation” in the clause. On
the other hand, the party who has a lot to lose when the other party fails to perform would wish to
narrow the scope of the application of the clause. It is common practice now to put the basket
1clause first and then add a list of specific events.475Whenever there is a contract in which a party is
to receive some services, the receiving party would wish it to be clear in the contract that in the case
of a natural disaster it does not fall within the event of force majeure. So, it is extremely important
to draft the force majeure clause carefully in order not to get anomalies in the interpretation
especially when there are some boilerplate clauses in the contract.
At common law, where frustration occurs the contract is automatically discharged and the parties
are released from performance of all further obligations. That is, termination for frustration does not
require any election to be made by the parties but rather occurs automatically. A frustrated contract
cannot
COVID
ForceMajeureCommercialContracts.pdf
lthough there are very few modern cases considering whether a pandemic or an epidemic can
qualify as a force majeure, the courts will likely follow the same approach as with any other
catastrophic event and look at the language of the parties’ agreement. In some agreements, the
force majeure provision will specifically define a force majeure to include epidemics or quarantine
restrictions, in which case the COVID-19 outbreak would almost certainly be considered a force
majeure. See, e.g., Kyocera Corp. v. Hemlock Semiconductor, LLC, 313 Mich. App. 437, 441 (2015).
More frequently, however, a force majeure provision does not include any specifically identified
events, will list only acts of God, or include a catch-all provision a party may assert that applies to the
COVID-19 virus. A “typical” force majeure clause was discussed by the Minnesota Supreme Court in
Pillsbury Co. v. Wells Dairy, Inc., 752 N.W.2d 430, 439 (Minn. 2008), which provided that neither
party “will be liable for delays” that are “caused by acts of God or government authority, strikes,
accidents, explosions, floods, fires, or the total loss of manufacturing facilities or any other cause
that is beyond the reasonable control of that party.” With a similar clause, a party facing supply
disruptions would be left to argue whether Covid-19 falls within an act of God or the catch-all
provision of the clause. As an act of God, there is little case law that is often conflicting, leading to
considerable uncertainty. Compare, e.g., Phelps v. School Dist., 221 Ill. App. 500, (Ill. Ct. App. 1921)
(holding that a public epidemic is not an act of God) with Sandry v. Brooklyn Sch. Dist., 47 N.D.
444, 451 (1921) (holding that an epidemic is an act of God that excuses performance).
https://www.allenovery.com/en-gb/global/blogs/compact-contract/will-covid-19-trigger-a-force-
majeure-clause-under-my-contract
https://marinbar.org/news/article/?type=news&id=550
COVID-19 as Force Majeure-
There is no doubt that the COVID-19 pandemic is beyond the control of the parties (See Free
Range Content, Inc., supra.) And in virtually all cases, it is inarguable that governmental orders
and/or directives have driven the impossibility or impracticability of performance. In addition, it
seems difficult to argue that the pandemic and the response to it are not extreme and
unforeseeable. Finally, COVID-19 would likely be sufficiently similar to be considered ejusdem
generis. (See Sears, Roebuck & Co., supra.)
There can be little argument that a society crippling pandemic is a “superior force” of similar severity
and impact as other events which are traditionally considered force majeure and “could not have
been prevented by prudence, diligence, and care.” (Horsemen's Benevolent & Protective Assn. v.
Valley Racing Assn. (1992) 4 Cal. App. 4th 1538, 1564.) Thus, if performance under a contract is
rendered impossible or impracticable by COVID-19 or any governmental response thereto, and the
contract contains a force majeure clause with governmental orders or directives or catchall
language (or, of course, health emergencies), there is a strong argument that performance should
be excused. These are unprecedented times, and this seldom-used provision may become more
relevant than ever.
https://www.dykema.com/news-insights/recent-supreme-court-of-pennsylvania-ruling-may-impact-
interpretation-of-force-majeure-in-future-covid-19-disputes.html
In its April 13, 2020, decision in Friends of Devito v. Wolf,[1] the court dismissed statutory and
constitutional challenges by several business owners (“Petitioners”) who contended that the
Governor lacked statutory authority to issue an executive order that compelled the closure of all
non-life-sustaining businesses within the state in order to curb the spread of COVID-19.[2] The
Petitioners also argued that even if the Governor had such statutory authority, that the executive
order violated their constitutional rights. Petitioners’ arguments required the court to determine
whether the COVID-19 pandemic was a “disaster” under the Pennsylvania Emergency Code which
granted emergency powers to the Governor.[3] The court noted that “disaster” under the
Emergency Code is defined as “[a] man-made disaster, natural disaster or war-caused disaster” and
that “natural disaster” is further defined as “any hurricane, tornado, storm, flood, high water, wind-
driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion or
other catastrophe which results in substantial damage to property, hardship, suffering or possible
loss of life.”[4]
Petitioners contended that because a viral illness like COVID-19 was not included in the list of
applicable disasters, the court was required to apply the doctrine of ejusdem generis “which
prevents the expansion of a list of specific items to include other items not ‘of the same kind’ as
those expressly listed.”[5] The court determined that “[i]t is beyond dispute that the COVID-19
pandemic is unquestionably a catastrophe that ‘results in… hardship, suffering or possible loss of
life.’”[6] Thus, the question then became whether the COVID-19 pandemic could be classified as a
“natural disaster” based on the application of the doctrine of ejusdem generis.[7] The court
concluded that it could, including, among other reasons, due to the definition of “natural disaster.”
There is little case law analyzing the language of force majeure clauses related to diseases or
pandemics. Further, the manner in which a force majeure clause will be interpreted will vary on a
case by case basis and will depend on the specific language used in the contractual provision.
https://www.pslchambers.com/wp-content/uploads/2020/04/Covid-19-and-Commercial-Contracts-
Is-Force-Majeure-Invocation-the-Panacea-or-another-Pandemic.pdf
Some judicial trends Most recently, the Bombay High Court in the matter of Standard Retail Pvt. Ltd.
v. M/s G.S. Global Corp & Ors., Commercial Arbitration Petition (L) No. 404 of 2020, gives an insight
into the approach that the Courts in India may adopt while dealing with the prevailing situation of
Covid-19 outbreak. In this case, the buyer of imported steel sought to restrain the seller from
encashing the former’s letter of credit on the ground that their contract had been terminated due to
frustration, impossibility and impracticability in terms of Section 56 of the Contract Act due to
lockdown imposed in the wake of Covid-19 outbreak. The Court, instead of allowing the reason of
lockdown to be an overarching reason for claiming frustration of the contract, examined the nature
of the contract in question i.e. a letter of credit and went on to hold that a bank guarantee is a
separate contract all-together and is indifferent to the conditions prevailing between the buyer and
the seller. Thus, alleged frustration of one contract would not automatically lead to frustration of
another contract. Further, in rejecting the relief sought by the buyer, the Court held that commercial
hardship could not be cited as a reason to excuse performance to the disadvantage of the seller. In
this case, even the force majeure clause in the contract could excuse performance only by the
seller and thus, could not come to the aid of the buyer. (irrelevant case) In any event, where the
supply of goods in question and activities connected to it were exempted from the lockdown as an
essential service and the lockdown itself was a temporary impediment, if at all, the same cannot be a
reason to excuse performance and payment obligations under the contract. This decision of the
Court reaffirms the view that courts would examine the plea of frustration, or even force majeure,
on a case-to-case basis depending on the nature of contract and the circumstances between the
parties governing it. Till such time that Indian jurisprudence on whether a pandemic could qualify as
a force majeure/frustrating event does not offer clear guidance, foreign jurisprudence may be
looked at to get an insight on how the interplay between the two may be interpreted. The SARS
outbreak in 2002 was held to be a force majeure event under the Canadian Law[1]. Even in the
United States of America, it has been observed that where one party could not perform its
obligations as a result of an epidemic, it could not be held liable for breach of the contract.[2]
However, where the outbreak of an epidemic does not significantly change the nature of the
outstanding contractual rights or obligations between the parties, it has been held under the law
of Hong Kong that the parties cannot be excused from performing their part of the contract for
this reason.[3 (use all these cases)
https://www.jdsupra.com/legalnews/southern-district-of-new-york-holds-4579939/
#:~:text=Applying%20New%20York%20law%2C%20the,within%20the%20meaning%20of%20a
%20%22 – using covid EG to prove that covid is FM
https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=3495&context=vlr – PLZ READ

COVID PART OF THIS, HAS CASES!
https://www.hklaw.com/en/insights/publications/2021/02/sdny-holds-covid19-pandemic-
constitutes-a-natural-disaster - Jn wala case and has other cases- see if imp.
https://www.nsbm.ac.lk/wp-content/uploads/2021/08/ICOBI_2020_Force-Majeure-Supervening-
Impossibility-Frustration-of-Contract-in-Light-of-COVID-19.pdf
Act of God’ is used in force majeure clauses and it is felt that the COVID-19 pandemic should fall
within the ambit of this term. An Act of Gods has been legally defined as: - ‘such a direct and
violent and sudden and irresistible act of nature as the defendant could not, by any amount of
ability, foresee would happen. Or, if he could foresee that it would happen, he could not by any
amount of care and skill resist, so as to prevents its effect’.5 In Transco plc v Stockport Metropolitan
Borough Council6 , it was held that, the term force majeure includes one of the events that
‘involved no human agency’. Act of Gods is normally confined to natural disasters such as floods
and earthquakes. Therefore, it is highly unlikely that ‘lockdowns’ would fall within the definition
of an ‘Act of God’. A lockdown may be described as an official order to control the movement of
people or vehicles because of a dangerous situation. However, it should be noted that the nature
of this pandemic and its wide effects cannot be seen as an event which persons are able to avoid.
The lockdowns are imposed by governments and they should fall under government restrictions. It is
apparent that the government-imposed lockdowns render a negative impact on businesses due to
the consequential decrease in profits. In addition, certain processes are also delayed, such as
financial facilities and government approvals. When the government imposes a lockdown, the public
loses access to a wide range of services. The same is true for businesses, which often rely on
government. In the light of that, this paper suggests that, the government-imposed lockdowns
should be treated as events that constitute force majeure.
The Delhi High Court has in the case of Halliburton Offshore Services Inc. v. Vedanta
Ltd[6] highlighted the need for the examination of the facts and circumstances of each matter where
such a clause is invoked. It was stated that: “The Court would have to assess the conduct of the
parties prior to the outbreak, the deadlines that were imposed in the contract, the steps that were to
be taken, the various compliances that were required to be made and only then assess as to whether,
genuinely, a party was prevented or is able to justify its non- performance due to the
epidemic/pandemic”. Pertinently, the Bombay High Court in the case of Standard Retail vs G.S
Global Corp Pvt. Ltd.[7]held that contracts may not be avoided if the event (in this case the
pandemic) does not affect performance of the contract or every aspect of the contract. Merely
invoking the force majeure clause is not sufficient, but a prima facie case must be established
demonstrating the inability of a party from fulfilling its obligations under the contract.
In one of the present cases, Halliburton Offshore Services Inc. v. Vedanta Limited & Anr.,9 was heard
by the Delhi HC, in which the petitioner claimed protection under force majeure. In this case, the
petitioner requested an injunction to prevent the defendants from cashing bank guarantees that the
petitioner had provided to them in support of a development work contract. The victim filed an
application for an interim injunction, claiming that the petitioner was unable to execute its share of
the contract due to the total lockdown and restricted movement caused by the Covid-19 pandemic
in the first quarter of 2020. The Court granted the petitioner's request, acknowledging that such a
lockdown is unprecedented and in the nature of force majeure, that none of the parties could
have predicted this event, and that it is only fair to grant ad-interim relief for one week after the
lockdown ends. In Ramanand and Ors v. Dr. Girish Soni & Anr.,10 the Delhi High Court clarified its
position on the meaning of force majeure in the absence of a contractual connection. The tenant in
this case was renting a business space in Khan Market, Delhi, for a meagre price of Rs. 300/- per
month under a lease document signed on February 1, 1975. In a review appeal filed by the landlord,
the Delhi High Court delayed the eviction pending payment of Rs. 3.5 lacs in monthly rent. To
determine the legal position, the court considered a number of criteria, and found 9 Halliburton
Offshore Services Inc. v. Vedanta Limited & Anr O.M.P. (I)(COMM) & I.A. 3697/2020 that the parties
had not entered into a rent agreement or lease deed. In the lack of any contractual duty between
the parties, the renter had no recourse to force majeure protection.
CONTRA PREFERENTUM
Limitation- very little application when the parties are of equal bargaining powers
https://www.jdsupra.com/legalnews/limited-role-for-contra-proferentem-62482/
file:///C:/Users/PIYUSH/Downloads/alr,+37-2_7_Paulus_and_Meeuwig.pdf – has a case on contra

proferentum (Hannah case)
The first area of uncertainty relates to whether or not Force Majeure clauses are to be construed
contra proferentum. This means any uncertainty in the clause will be interpreted against the
person wishing to rely upon it. In English law this was the situation (see Fairclough, Dodd & Jones
Ltd v. JH Vantol Ltd [1957] 1 WLR 136), but the trend of recent cases has been in favour of giving
effect to the intention of the parties, without adopting any preconceived notions of what the
contract should mean, even in relation to exclusion clauses.
https://fidic.org/sites/default/files/9%20FORCE%20MAJEURE.pdf
https://www.ashurst.com/en/news-and-insights/legal-updates/exclusion-clauses-and-the-
limitation-of-the-contra-proferentem-principle/ - case example of diminishing importance of C.P-
use
https://www.maweresibanda.co.zw/covid-19-can-a-party-invoke-force-majeure-clauses-to-escape-
a-contract/
orce majeure provisions are usually construed strictly such that if there is ambiguity the contra
proferentem rule will apply. Contra proferentem means that the clause is interpreted against the
interests of the party that drafted and is seeking to rely on it. . In the present circumstances, a party
must prove the extent COVID –19 prevented them from performing their obligation whether in
whole or in part. This therefore creates a cumbersome task for a party that bears the burden of
proof and that seeks rely on it In simple terms it must clearly be shown that the virus caused the
failure to perform. The case of Seadrill Ghana Operations Ltd v Tullow Ghana Ltd [2018]
EWHC shows that courts not only look at an event as a cause but rather the effective cause of the
failure to perform.
FORCE MAJEURE AND ITS RELATED CONCEPTS
FM AND FRUSTRATION- I HAVE A LOT
FORCE MAJEURE WAALI BOOK.pdf – VVVV Imp for FM and Frsutration- very niche case law. Check
out case laws from here for Ejusdem Gen too.
https://www.bennett.edu.in/wp-content/uploads/2021/06/Article-11.pdf - imp stuff on frustration
HARDSHIP
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1782&context=faculty_scholarship – see
if hardship from this is useful or relevant
https://lorenz-partners.com/hardship-clauses/ below from
FRUS
Frustration of Purpose “Frustration of purpose” evolved as a defense in order to excuse a party from
performance under a contract when an intervening or supervening condition substantially frustrated
the main purpose for the contract.94 For the doctrine of frustration of purpose to apply, the parties,
in making a contract, must have been operating under a basic assumption that the intervening or
supervening event would not occur.95 The frustration of purpose defense has three elements: (1)
“the event giving rise to claim must be totally unexpected and unforeseeable;” (2) “the risk of the
event must not be provided for, either by the language of the charter party or by custom;” and (3)
“the performance of the contract must be impossible or commercially impracticable.”96 “Frustration
may be complete or partial.”97 But when only part of a performance is frustrated, it’s less likely that
a court will excuse nonperformance.98
s with other defenses for nonperformance, frustration of purpose is applied narrowly.99 A Florida
bankruptcy court considered COVID-19 as frustration of purpose along with the impossibility
doctrine in In re Cinemex USA Real Estate Holdings, Inc.100 Even though the court did find that the
government shutdown provided the movie theater operator with an impossibility defense for
nonpayment of the lease, the court declined to apply frustration of purpose for missed lease
payments after the mandatory shutdown ceased because the movie theater opted to stay closed for
economic reasons.101
2.2. Hardship
In case of hardship, the performance of the contract is not impossible, but hindered. Hardship is
defined as any event of legal, technical, political or financial nature occurring after the conclusion of
the contract, which was unforeseeable at the time the contract had been formed, despite using the
utmost care. In general, hardship does not cause the impossibility of performance, but allows for re-
negotiation of the contract.
Hardship clauses typically recognise that parties must perform their contractual obligations even if
events will render performance more difficult than one would reasonably have anticipated at the
time of the conclusion of the contract. However, where continued performance has become
excessively burdensome due to an event beyond a party’s reasonable control, a hardship clause can
oblige the parties to negotiate alternative contractual terms. The purpose of a hardship clause is to
provide a higher level of flexibility and to balance the risk between the parties.
The principle of hardship is particularly influenced by common law and the equitable rights of the
Anglo-American legal system to find a balance under the principle of equity and good faith.
Hardship, in contrary, is based on the fact that the underlying circumstances of the contract change
in a way the parties did not foresee at the time of concluding the contract, and although in principle
the contractual obligations are still fulfillable, it does not make sense from an economic viewpoint.
Example: The seller of a specific object looses the object in the ocean. In principle, he must try to
recover it from the bottom of the ocean, which is theoretically possible, but obviously does not make
economic sense.
Hardship- https://www.linkedin.com/pulse/force-majeure-hardship-doctrines-comparative-
approach-ribeiro/
Hardship is a clause in a contract which is used to cover the cases whereupon an unforeseen
event happens and cause an alteration in the balance of the contract, culminating in an excessive
burden for one or both parties involved.[16]
UNIDROIT Principles of International Commercial Contracts[17] define the criteria for

hardship application in article 6.2.2: the event must be after the conclusion of the contract; The
event could not been taken into account when the contract was concluded; The event is beyond the
parties control; The risk of the event was not assumed by the parties.
The main effect of hardship is the renegotiation of the contract. In case this does not work, the
parties can go to court. The court can either ´terminate the contract at a date and on terms to be
fixed` or ´adapt the contract with a view to restoring its equilibrium`. [18]
file:///C:/Users/PIYUSH/Downloads/
Forcemajeureandhardshipininternationalcontractualpractice.pdf
3.1. Definition of hardship Hardship clauses organize the revision of the contract whenever upsetting
circumstances significantly modify the economy of the contract. They apply to situations of changed
circumstances in which the parties intend not to dissolve the contract but to continue it.37 The
concept of hardship is projected primarily for application to long-term contracts. It deals with the
assumption that the occurrence of the radical change of circumstances, after the contract was made,
destroys the foundation of the contract or the contractual equilibrium.38 It also recognizes that a
fundamental alteration of the contractual equilibrium entitles the disadvantaged party to demand
a good faith renegotiation of the contract and to have it adapted to restore an original contractual
equilibrium or to have the contract terminated by the court if the attempt to renegotiate were to
fail. The unexpected change of circumstances causing a fundamental alteration in the economics of
a contract as the situation covered by a typical hardship clause corresponds very closely to the legal
concept of imprévision (lack of foresight) in French law. However, the French theory of imprévision
in fact concerns situations where the relative position of the parties is completely altered as a result
of the supervening events, which were initially unforeseeable.39 In international contractual
practice hardship provisions deal with circumstances which can be foreseen. Under transnational
uniform instruments such as the 1994 UNIDROIT Principles of International Commercial Contracts,
hardship requires a change in circumstances so severe and fundamental that the promisor cannot be
held to its promise despite the possibility of performance.40 It is not necessarily the case in
international contractual practice, since the parties are free to define the level of ‘severity’ in
relevant provisions. It is very difficult to define in general terms when performance becomes too
burdensome. Such issues may only be decided in the context of a particular case
https://lawels.com/en/2022/04/03/the-concept-of-force-majeure-and-similar-institutions/ - has a
LOT of relevant stuff on Hardship plus Frustration- has origins of Frsutration so vvv imp, must
include.
LIMITATION OF LIABILITY CALUSES- https://www.jdsupra.com/legalnews/limitation-of-liability-

clauses-61680/ (these only limit the damages, FM excuses non performance- find differnec based on
general reasoning)
https://www.tamimi.com/law-update-articles/can-we-really-limit-liability/
EXEMPTION CLAUSES - https://juro.com/learn/exemption-clauses
What are the different types of exemption clauses?
Exemption clauses can cover a variety of things. However, there are two main types of exemption
clauses you should consider when drafting a contract and entering into contract negotiations. These
are limitation clauses and exclusion clauses. Let’s run through them now.
1. Limitation clauses
Limitation clauses are a type of exemption clause that limits a party’s liability for something. For
example, parties may use a limitation clause to limit the amount of money they’re responsible for
paying in damages if certain events occur, like a breach of contract.
2. Exclusion clauses
An exclusion clause is another type of exemption clause. You’re probably ahead of us here – these
exclude a party from liability, which means they take away all responsibility, either partly or
completely.
Same thing reiterated in more detail wid example- https://www.concordnow.com/blog/types-

exemption-clauses-found-contract/
https://link.springer.com/chapter/10.1007/978-1-349-14657-4_11
An exclusion clause may be defined as a ‘clause in a contract or a term in a notice which appears to
exclude or restrict a liability or a legal duty which would otherwise arise’ (Yates, 1982, p. 1).
Exclusion clauses are a common feature of contracts today and may take a number of different
forms. The most frequently encountered types of exclusion clauses are those which seek to exclude
liability for breach of contract or for negligence or which seek to limit liability to a specified sum.
https://ojs.mruni.eu/ojs/societal-studies/article/view/1358 - cite this please
- Cant find anything on these and their relation to FM
SUPERVENING IMPOSSIBILITY - https://www.werksmans.com/firm-news/force-majeure-and-

supervening-impossibility-of-performance/
https://www.nithyapartners.com/journal/force-majeure-and-supervening-impossibility-in-
contracts#:~:text=The%20doctrine%20of%20supervening%20impossibility%20is%2C%20however
%2C%20invocable%20by%20operation,incorporated%20into%20the%20relevant%20contract. – has
def of SI, can say similar to F.M
The doctrine of supervening impossibility is, however, invocable by operation of law - whereas
a force majeure clause, as entirely a creature of contract, may, necessarily, only be relied upon
where one has already been incorporated into the relevant contract.
n the absence of a force majeure clause, the common law position will apply. In terms of a South
African common law doctrine known as “supervening impossibility”, each party’s obligation to
perform in terms of an agreement and their respective rights to receive performance under that
agreement will be extinguished in the event that the performance by a party of its obligation
becomes objectively impossible as a result of unforeseeable and unavoidable events, which are not
the fault of any party to that agreement. Such events are known as vis maior (“major force”)
or casus fortuitus (“accidental occurrence”).
Performance of an obligation will not be objectively impossible if that performance has merely
become more onerous, difficult or costly. Nevertheless, absolute factual impossibility is not required;
performance may still be objectively impossible if such performance is factually possible, but illegal
or it has become so difficult or burdensome that the party cannot reasonably be expected to
perform. The standard of conduct generally acceptable in business dealings in the particular
community will determine whether performance is objectively impossible; performance might in law
be regarded as impossible while still factually possible. Conversely, if a party has guaranteed
performance, then the fact that performance subsequently becomes factually impossible does not
absolve that party of liability.
In terms of the application of the doctrine of supervening impossibility, the Supreme Court of
Appeal in Transnet Ltd t/a National Ports Authority v Owner of MV Snow Crystal (quoting older
authority) held that in order to determine whether the doctrine applies, it is necessary to look at
factors such as the nature of the contract, the relationship of the parties, the circumstances of the
case and the nature of the impossibility. Accordingly, any analysis of whether a party would be able
to rely on the defence of supervening impossibility in respect of its inability to perform its
obligations in terms of an agreement as a result of the COVID-19 virus outbreak must take into
account all of the surrounding circumstances of that case.
If a force majeure clause is not incorporated in a contract, the parties can invoke remedies under
the doctrine of ‘frustration’. This doctrine is identified as ‘supervening impossibility’ under Roman-
Dutch law (common law too? Find out) which is applicable in Sri Lanka. (THEY ARE SAME THING
NO NEED)
https://www.psn.co.za/NewsResources/NewsArticle.aspx?ArticleID=3245
Supervening Impossibility
Where a contract does not contain a "force majeure" clause or does not make specific provision for a
pandemic such as COVID-19, a party to a contract could rely on the common law principle of
supervening impossibility to escape liability for its failure to perform. Supervening impossibility is a
common law defence that suspends or in some instances terminates a party's obligations to
perform.
In general, our courts have restricted the scope of supervening impossibility and it applies in very
limited circumstances. A party seeking to rely on the principle of supervening impossibility must
show that the performance is objectively impossible. The mere fact that it would be difficult to
perform or that it would cause undue hardship to perform, will not excuse a party from its
contractual obligations to perform.
Beware – invoking supervening impossibility could lead to termination of the contract.
https://www.grin.com/document/37770 - read, see if imp
From FM waala book-
Moreover, a Force majeure clause must be used cautiously in the presence of an expressed
exclusion or limitation clause as both have as objective to exonerate the promisor from liability. The
one clause may render the other inoperative. Generally, a force majeure clause is confined to
external events and an exclusion or limitation clause would be confined to acts that are within the
control of the promisor.
https://www.cmr.edu.in/school-of-legal-studies/journal/wp-content/uploads/2022/02/03-Force-
Majeure-in-Commercial-Contracts.pdf - MUST READ FOR RELATIONSHIP BW FM AND EXEMPTION
CLAUSES HELLA GOOD!
CONTOURS OF FORCE MAJEURE CLAUSES/ELEMENTS (basically discussion on what triggers the F.M)
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1782&context=faculty_scholarship
The first portion of this will deal with what is unforeseeable plus what counts as an impediment
beyond the parties’ control
he following notion of unforeseeability seems sound-an event so unlikely to occur that reasonable
parties see no need explicitly to allocate the risk of its occurrence, although the impact it might
have would be of such magnitude that the parties would have negotiated over it, had the event
been more likely.63
Specefic events
- Financial diffciulties/ eco commercial problems

https://www.bennett.edu.in/wp-content/uploads/2021/06/Article-11.pdf - a lor on
commercial hardship (but ig that;s for frustration?)
file:///C:/Users/PIYUSH/Downloads/SSRN-id3588338.pdf - has good cases on
fincancial/market circumstances
Impediment beyond [the party's] control '49 Three American cases illustrate this phrase. In Peckham
v. Industrial Securities Co.,50 a receiver was appointed to seize the assets of the seller, including
goods that were the subject of the contract.5 1 The Delaware Supreme Court held that the seller
was to be excused only because the appointment of the receiver was wrongful and not due to the
seller's own conduct.52 In another case, Lowenschuss v. Kane,53 a temporary injunction preventing
the delivery of shares of stock was issued against the buyer based on alleged violations of the
antitrust and securities laws. 54 The United States Court of Appeals for the Second Circuit held that
buyers are to be excused and are not to be held liable for breach if it is found that there were no
such violations.55 In Canadian Industries Alcohol Co. v. Dunbar Molasses Co., OFN.,56 apparently
involving international commerce, a middleman promised delivery to the buyer of one-and-a-half
million gallons of blackstrap molasses from a specific sugar refinery.57 The seller failed to deliver
and, in defense of a breach of contract action, argued impossibility, proving that the specified
refinery did not produce a sufficient quantity to fulfill the contract.58 The defense was unsuccessful
as the seller failed to show what efforts it had made to attempt to secure a contract for the
production and delivery of sufficient molasses from the operator of the refinery.59 What if the
impediment is caused by the party's financial embarrassment? Neither Article 7.1.7, nor the
commentary to it, refers to this kind of impediment. Under American law, it is quite clear that
financial impediments provide no excuse; these are regarded as "subjective" rather than "objective"
impossibility and there is unanimity in the case law and in doctrine that subjective impossibility
provides no excuse, whether or not it was the result of conditions outside the control of the
obligor.60 It is generally believed that the risk of financial ability to perform is such a basic
assumption underlying all contracts that it cannot be excused, except by a decree in a bankruptcy
proceeding. It is hard to believe that this general belief is suspended in international trade.
Consequently, the phrase "beyond [the party's] control" should be given a broad meaning so that it
will be deemed that financial health is always within a contracting party's control.
https://www.bradley.com/-/media/files/insights/publications/2021/03/sup-materialsarticle-use-the-
force-understanding-force-majeure-clauses-robinson-selman-steineker-thrasher-mar-2021.pdf - has
detailed on some specific events- terrorism, hurricane, etc. VVV imp, include.
Application of the principle of Force Majeure:
The Courts over a period of time have laid down various rules for the application of this principle. 1.
It is a general rule that a force majeure itself will be applicable only when the event that gives rise to
it is beyond the control of the parties and could not be avoided or mitigated through reasonable
steps. In Bulman & Dickson v. Fenwick & Co. , one 38 of the exceptions in the Charterparty delay was
caused due to strike in loading and unloading. The Court observed that the strike could not be taken
as one of the grounds for taking delivery of goods upon arrival of the vessel. However, since, on facts
it was found that even with reasonable steps they could not have taken delivery. The delay on
account of the strike was held to be within the exception clause. In a number of subsequent cases,
the test of reasonable efforts taken by the party invoking force majeure was followed.
2. Where a clause on Force majeure contains the expression ‘prevention of contractual obligation’ as
an event triggering force majeure, the Court would only rely on it when it is legal or physical
prevention and not arising out of economic reasons such as loss of profit, or commercial
impossibility or change in market conditions affecting the viability of the contract etc.39
3. Where an event contained in the force majeure causes nonperformance of the contractual
obligations, only then can the doctrine be invoked. A contract of sale of nuts stipulated that
the seller had the right to terminate the contract in the event of nondelivery due to failure
of crops. However, due to poor output of crops, the seller tried to avoid the contract. The
Court did not agree as there was no failure of crops and secondly, the party was not
prepared to pay a higher market price to get the delivery . 40 4. If the Force majeure clause
provided for an alternate mode of performance of the contract, then the relief of Force
majeure would not be available. A seller cannot take the plea that he intended to perform in
a particular way or time but was prevented by the supervening event but also needs to show
that he could not have performed through alternate time or ways . 41 5. Where an event
which could not have reasonably been foreseen, even if mentioned as part of Force Majeure
clause, such an event would not trigger a Force Majeure but frustrate the contract itself. In
case of a building contract, where a reservoir was to be built in 6 years time, the contract
provided for extension of time on account of difficulties or impediments; however, due to
Governmental directive the work was stopped. When the provision Force Majeure was
invoked and argued that it was covered under the extension of time due to delay. But House
of Lords held that the contract was frustrated. They held that though the general language
was wide enough to include any contingency, the words were used alio intuitu and could not
have covered an indefinite legislative delay . 42 6. The relief of Force majeure may not be
available if the event causing force majeure was caused by the negligence of the party who
seeks such relief.
7. If the Force Majeure clause demands serving of notice as a condition precedent by a party
relying on it, the said party may not get the relief if he had not given the notice. The English
Common law has also held that it would be difficult to assess the relationship between these
two doctrines, Force Majeure and Frustration. For instance, if for some reason the force
majeure covers an event fully which otherwise would qualify for frustration, the latter
would be excluded .
WAR- use the ICC case doc
An Italian text summarizing some of the Italian cases states: As to a contract made in 1914 to last 60
years, the outbreak of a war (or better, of a certain number of wars) was foreseeable and also
foreseeable was the development of aerial arms and the resort to aerial bombardments.... As to a
contract made during the second world war, the protracted duration of that war was not
foreseeable, nor were the proportions of its consequences measurable. 64 One can reflect on the
soundness of such distinctions of fact made by the Italian courts. Similarly, one can reflect on the
soundness of decisions of American courts to the effect that American participation in the second
World War was foreseeable, 65 despite the fact that the Japanese attack on Pearl Harbor found their
armed forces totally unprepared. Yet, American merchants were supposed to foresee the onset of
American participation in the War. Also, the American courts ruled consistently that the closing of
the Suez Canal in 1956 was foreseeable to merchants who relied on the canal route.66 It was again
foreseeable in 1967 when the second canal closing took place.67
Outbreak of war may seriously affect the performance of the contract or even discharge the
contract. For instance, in the Fibrosa case, a Polish company ordered machines from an English
manufacturer shortly before the outbreak of the Second World War. The machines had to be
delivered to a Polish port ‘c.i.f Gdynia’ within a certain time. The contract stipulated that in case of
war and other events beyond the parties’ control, a reasonable extension of the time of delivery
should be granted. The war broke out and Gdynia was occupied by Germans. The British House of
Lords held that the contract was discharged. The extension clause did not save the contract, because
it was projected only for minor delay - Fibrosa Spółka Akcyjna v. Fairbairn Lawson Combe Barbour
Ltd (1943) A.C. 32. However, it must be stressed that that ‘war excuse’ will only be accepted by
international arbitrators, if the hostilities have had a direct impact on the performance of the
contract and that, performance has to be continued if it is possible, after a reasonable time. Hence,
the force majeure argumentation may be rejected, if the cost of performance considerably
increased, but it is possible to perform the contract - see ICC Case No. 2546 (unpublished) dealing
with the impact of the outbreak of the Yom Kippur War on shipments to Israel. Furthermore, due to
the fact that many military conflicts are not considered as wars in the light of public international
law, it may be useful to draft force majeure clause with reference to ‘war, declared or not, any war-
like events’.
Force majeure and war- https://www.legal500.com/developments/thought-leadership/force-
majeure-in-times-of-war/ read whole
A mainstay in force majeure clauses in modern contracts, the force majeure of ‘war’ has been
interpreted to require a lower causation threshold in comparison to other events. Most events
specified in force majeure clauses require that such an event should “prevent performance” of the
contractual obligations. In comparison, the condition of “war” mostly requires that the war
“materially affects” performance, not requiring the prevention of performance by the event. [8]
[8] Classic Maritime Inc. v Limbungan Makmur SDN BHD and another, [2019] EWCA Civ 1102
STRIKES
https://www.mondaq.com/india/litigation-contracts-and-force-majeure/928048/a-closer-look-at-
force-majeure-frustration-of-contract-and-impossibility-to-perform-contracts-during-the-covid-19-
pandemic
IV. What are the essentials for invoking Force Majeure defense?
a. The event shall render the contract impossible to perform – For an event to qualify as Force
Majeure event dehors the contract – such event shall totally upset the very foundation upon
which the parties rested their bargain. The event or change in circumstance which strikes at
the root of the contract is treated as frustrated. What is required to be examined is whether
the changed circumstance had destroyed altogether the basis of the agreement and the
underlying object.8 When the circumstances change drastically and the altered
circumstances were never visualized or contemplated, the contract becomes ex
facie unenforceable. The doctrine 'non haec in foedera veni' (it was not this that I had
promised to do) is applicable. The courts accept that a contract which is impossible of
performance in practical sense need not be performed. 9
b. The event shall be unavoidable and economic hardship alone cannot result in Force
Majeure – a rise in cost or expense has been stated not to frustrate a contract. 10
(supplement this by other cases about finance wagera)
i. The Covid-19 pandemic is likely to make a dent or cripple the economy for some time and
one can therefore expect harsher than normal economic conditions increasing the cost for
performance of contracts – for example, increase in prices of raw materials, increase in cost
of labour, inflation, currency fluctuations, etc. The question that arises is whether such
circumstances i.e., economic hardships to perform the contract, can absolve the party from
performing its bargain on the ground of Force Majeure or frustration of contract.
ii. A force majeure clause will not normally be construed to apply where the contract provides
for an alternative mode of performance. 11 A more onerous method of performance by itself
would not amount to a frustrating event. The event should be unavoidable and absolutely
beyond the control of the debtor. 12 In fact, even a wholly abnormal rise or fall in prices, a
sudden depreciation of currency, and a little obstacle to execution or the like cannot by itself
affect the bargain made between the parties. 13 Even under common law, a contract is not
discharged merely because it turns out to be difficult to perform or onerous. 14 In other
words, to attract the doctrine of frustration, burdensomeness is not the necessary
consideration; the impossibility of performance contract is the true criterion. 15
c. The event must be unforeseeable – the event must be incapable of being anticipated or
predicted by common due diligence. An advance warning for an expected Force Majeure
event, shall not trigger the Force Majeure clause. 16
i. One of the crucial tests for setting up the defense of Force Majeure is the test of
foreseeability at the time of entering into the contract. 17 A CEITAC Tribunal considering the
defense of SARS outbreak in 2005, held against the non-performing party on the ground that
SARS outbreak took place 2 months prior to executing the contract, and therefore the same
was foreseeable.18 Even in one of India's leading cases on frustration of
contract viz. Satyabrata Ghose v. Mugneeram Bangur & Co.19, when a war/war like situation
prevailed during the 1950s and the defense was attempted to be set up that the
Government requisitioned a plot of land for military purposes, where the developer had to
undertake development, it was held that war situation was prevailing at the time of
executing the contract and that such requisitioning by the Government was temporary in
nature and did not result in total impossibility or frustration of contract.
ii. Applying the aforesaid case to the present scenario of Government lockdown due to a
pandemic precluding a party from performing the contract, it is likely that the contracts may
not be deemed to be frustrated on account of pandemic, as the lockdown is temporary in
nature and the Courts may take a view that the contract can be performed once normalcy
restores. At the same time, courts cannot shut their eyes to harshness of the situation in
cases where performance becomes impossible by causes which could not have been
foreseen and which were beyond the control of the parties. 20
d. Causal test or 'but for' test – The event shall have occurred not by default of the party but
only as a result of the supervening event. This is referred to as the "causal test" where the
Court examines whether the non-performance is a direct result of a supervening event;
and "but for" such supervening event, the contract would have otherwise been
performed. This causal test is the most crucial test which shall be satisfied by adducing
evidence. In a situation where Force Majeure event has indeed occurred, and if such event
did not preclude the party from performing the contract, such party cannot take benefit of
Force Majeure clause.
e. Conditions precedent must be fulfilled – Most Force Majeure clauses provide that a non-
performing party seeking benefit of Force Majeure clause in the contract, shall put the other
party to such notice. These terms are conditions precedent for invocation, failing compliance
of such clauses, a party may not be able to take shelter under Force Majeure.
f. Duty to mitigate – A party relying on Force Majeure clause is supposed to take all the
necessary measures to mitigate the loss caused due to its non-performance.
g. The Supreme Court in Industrial Finance Corporation of India Ltd. v. Cannanore Spinning and
Weaving Mills Ltd.,21 held that there are three conditions are required to trigger off doctrine
of frustration under section 56 of the Contract Act - firstly, there should be a subsisting
contract; secondly, some part of the contract is still to be performed; and thirdly, after the
contract is entered into it becomes impossible of performance.
From FM walla book. Sub topic- does it have to be absolutely natural or some man made element
can be there (also the sri lanka covid wala article -lockdowns talks of this).
In Lebeaupin v. Crispin the Court defined force majeure as:... every circumstance which is
independent of the will of man, and which he cannot control, and that force majeure justifies the
non-performance of a contract.450 The court further added that war, inundations and epidemics
are cases of force majeure. This definition is not clear as on one hand it stated that the force must
not be an act of man and on the other hand it also included war and strike of workmen. Can a War
or strike be considered as an act of God? I submit that no reasonable person would consider a War
or Strike of workmen an Act of God. So, if it is not an Act of God, it should be an Act involving man
action. But in Lebeaupin v Crispin the court stated that force majeure must be independent of the
will of man and which he cannot control. In the case of a strike by work men, the event can be one
which the promisor is not willing to occur but it can be a situation which is under his control. This
definition is blurred and unclear.
HISTORICAL EVOLUTION OF FORCE MAJEURE
The doctrine of force majeure originates from the Roman and French law.451
The Roman law refers to the doctrine as vis major (superior force) and casus fortuitus (Fortuitous
case). The term Vis major in roman is described as “a superior force which is beyond resistance or
control”453 It includes events such as floods, earthquakes, storms and fires. Casus fortuitus on the
other hand describes an event resulted from the action of one or more persons, and includes theft,
strikes and arson. These are actions not related to natural events. The common link with both cases
is that the event or occurrence is unforeseeable and beyond the control of any of the contracting
parties.
file:///C:/Users/PIYUSexeH/Downloads/Force_Majeure_Impossibility_Frustration_the_Like_E.pdf -
copy paste historical evolution from here. Too detailed, sort out the main fact or just explain very
briefly
TREATMENT OF FORCE MAJEURE CLAUSES IN THE COMMON LAW
The common law, however, has never contemplated to embracing a doctrine based on the force
majeure principle. The common law has developed an unsatisfactory instrument known as
frustration. If the contracting parties wish to benefit from the concept of force majeure, they must
expressly include it in the contract. So, although the common law does not have a force majeure
doctrine on its own the parties to a contract can peruse the frustration doctrine and can also avail
themselves with the force majeure doctrine by including a provision in their contract. As such, in
case they want to exclude or diminish the possibility of the contract being discharged by frustration
they can do so.
Matsoukis v. Priestman, Bailhache J stated that: “The words force majeure are not words which we
generally find in an English contract. They are taken from the Code Napoleon ... In my construction
of the words 'force majeure' I am influenced to some extent by the fact that they were inserted by
this foreign gentleman . . . At the same time I cannot accept the argument that the words are
interchangeable with 'vis major' or 'act of God'. I am not going to attempt to give any definition of
the words 'force majeure', but I am satisfied that I ought to give them a more extensive meaning
than 'act of God' or 'vis major'.” 449
file:///C:/Users/PIYUSH/Downloads/Force_Majeure_Impossibility_Frustration_the_Like_E.pdf - has
common law perspective too (plus hardship and impossibility wagera)
Majeure-in-Commercial-Contracts.pdf - has for history
Majeure-in-Commercial-Contracts.pdf - has for common law , see
INTRODUCTION
STUFF YOU CAN USE FOR INTRODUCTION
Introduction
The doctrine of Pacta Sunt Servanda is robustly accepted and respected in both common and
civil law systems.[1] It basically states that the contract must be fulfilled by the contracting parties. It
is an important principle for economy, because brings reliability to deals. Without this trust in the
effectiveness of the contracts, economic activity cannot exist.[2]
However, there are two major exceptions of this traditional belief: Force Majeure and Hardship.[3]
The term force majeure derives from French and literally means ‘greater force’ or in other words
irresistible compulsion or coercion. According to the British dictionary of law [the] phrase is used
particularly in commercial contracts to describe events possibly affecting the contract and that are
completely outside the parties' control. Such events are normally listed in full to ensure their
enforceability; they may include acts of God, fires, failure of suppliers or subcontractors to supply
the supplier under the agreement, and strikes and other labor disputes that interfere with the
supplier's performance of an agreement. An express clause would normally excuse both delay and a
total failure to perform the agreement. 13
13 Dictionary of Law, Oxford University Press, Market House Book ltd 1997. Pursuant to the same
dictionary the term ‘acts of God’ means ‘an event due to natural causes (storms, earthquakes,
floods, etc.) so exceptionally severe that noone could reasonably be expected to anticipate or guard
against it’
Discussion on its definition- Force majeure has no fixed and settled meaning in the French legal
system or any law. It has been left for the court to decide on the interpretation when conflicts arise.
The interpretation by the courts have created several concerns as to consistency, fairness and
certainty. Under French law, force majeure is considered as an event that is unforeseeable,
unavoidable and external that makes execution impossible.448 In the French jurisprudence, several
expressions have been used for the phrase such as; "par suite de circonstance de force majeure"
which means following an "overwhelming force or an unforeseeable, insurmountable and irresistible
impediment to performance", "force greater than the power of resistance of the promisor". On 1
October 2016, the article 1218 of the French Civil Code has re-defined the force majeure concept.
For the first time, it codified the three essential elements that comprise force majeure: (i)
l'extériorité (externality); (ii) l'imprévisbilité (unforeseeability); and (iii) l'inévitabilité (inevitability).
Then you refer to court judgements that have defined it-
From FM waala book-
Van der Merwe, Van Huyssteen, Reinecke and Lubbe455 described these concepts as “events arising
from nature or human causation, which cannot be resisted, which is beyond the control of a normal
person, and which is unforeseen or unforeseeable by the relevant party.” In their examples they
include death, natural disasters, sickness and disease, war, strike action or intervention by
authorities.456 Hutchison et al gave a wider definition of these concepts which includes all
unavoidable acts of nature and humans.457In certain cases, a breach of contract will avail some
remedies to the disadvantaged party. This approach follows the principle of pacta sunt servanda of
contract law. However, a rigid enforcement of such terms in a contract may result to an unfair and
detrimental outcomes, especially in cases where neither party to the contract could be held
responsible for the non-performance. This is the main reason for contractual parties to include a
force majeure clause in their contract. The main objective of including a force majeure clause in a
contract is to limit the scope of the strict liability imposed on a contractual party for performance of
their contractual obligation after the occurrence of an unforeseen event which has created an
impediment to a party’s performance.458 Where a non-performing party to a contract proves that
its inability to perform was due to an event which falls within the ambit of the force majeure
definition, then that party shall escape liability.
Majeure-in-Commercial-Contracts.pdf - maybe has stuff that can be used for history too
https://www.bradley.com/-/media/files/insights/publications/2021/03/sup-materialsarticle-use-the-
force-understanding-force-majeure-clauses-robinson-selman-steineker-thrasher-mar-2021.pdf -
check out intro of this for intro
FORCE MAJEURE AND INDIA

https://www.ijlmh.com/wp-content/uploads/2020/05/The-Effect-of-Outbreak-of-COVID-19-on-
Force-Majeure-Clause-in-Commercial-Contracts-An-Indian-Perspective.pdf - can put this in
conditions of triggering (some parts).
As stated above, incorporation of a Force Majeure clause in a commercial contract is not mandatory
and there may be contracts without a such a clause. Naturally, in such cases, the affected party will
not be able to invoke the principle of Force Majeure. However, the affected party will be at liberty to
claim relief under the doctrine of frustration under section 56 of the
Indian Contract Act, 1872. The second part of section 56 is reproduced below for easy reference.
“56. … Contract to do an act afterwards becoming impossible or unlawful.- A contract to do an act
which, after the contract is made, becomes impossible, or, by reason of some event which the
promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
…” (Emphasis Supplied) Impossibility arising subsequent to the formation of a contract which could
be performed at the time when the contract was entered into is called a post-contractual or
supervening impossibility. In such a case, the contract becomes void when the act becomes
impossible or unlawful. It is to be noted that self-imposed impossibility of performance of a contract
is no excuse for non-performance. However, parties are discharged from performance of their
contractual obligations where the impossibility is caused by circumstances beyond the control of the
parties.15 In the celebrated case of Satyabrata Ghose v. Mugneeram Bangur & Co.16, the Hon’ble
Supreme Court observed that: “… This much is clear that the word “impossible” has not been used
here in the sense of physical or literal impossibility. The performance of an act may not be literally
impossible but it may be impracticable and useless from the point of view of the object and
purpose which the parties had in view and if an untoward event or change of circumstances totally
upset the very foundation upon which the parties rested their bargain, it can very well be said that
the promisor found it impossible to do the act which he promised to do…” (Emphasis Supplied) It is
assumed that the performance of contractual obligations was possible prior to the outbreak of
COVID-19. It is to be assessed whether the performance of a contract became impossible or
impracticable after the outbreak of COVID-19 and if the answer is in affirmative, the principle of
post-contractual or supervening impossibility incorporated under section 56 of the Indian Contract
Act, 1872 will be attracted. As observed by the Hon’ble Supreme Court, impossibility not only means
physical or literal impossibility but also impracticability. It may be that there is a possibility of
performance of contract but the performance will not achieve the desired objects and serve the
purpose. It is noteworthy that the burden is on the affected party to prove that there exists a legal
binding contract between the parties; the contractual obligations are yet to be performed; the
performance of contract has become unlawful, impossible, impracticable or useless from the point
of view of the object and purpose; and unlawfulness or impossibility is not self-imposed or due to
any reason attributable to the promisor. COVID-19 has not only made performance of contractual
obligations impossible and / or impracticable but has also made it unlawful in certain cases. The
state of lockdown has barred commercial transactions between parties. Hypothetically, a vendor has
to transport goods (except essential items) to the purchaser under a contractual arrangement. The
vendor cannot perform its contractual obligations since such a transport is restricted and any
attempt may attract action to the fullest extent of law. Similarly, inter-State trade under any contract
cannot take place legally. In other cases, wherein performance of contractual obligations may be
remotely possible, the performance needs to be examined from the point of view of the object or
purpose of the contract.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3872414
OCTRINE OF FRUSTRATION & IMPOSSIBILITY: IMPACT ON CONTRACTS WITHOUT FORCE MAJEURE

CLAUSE Outbreak of COVID-19 has made it impossible to perform obligations under a contract.
Impossibility of performance after execution of a contract is provided in Chapter IV under Section 56
of the Indian Contract Act, 187264 which is also known as the ‘Doctrine of Frustration’. Impossibility
need not be physical or literal, even the very sense of performing something which is useless can
constitute impossibility as held by Hon’ble SC in Satyabrata Ghose vs Mugneeram Bangur & Co. 65If
the promisor had agreed to perform on existence of a certain condition and now if the untoward
event taking place renders such condition as non-prevalent the promisor need not perform such
obligation because it becomes impractical and contrary to what was agreed. So if there is no FMC
part of the contract, it is obvious that the contract will not dissolve as per agreed terms because of
the emergence of an untoward event. Hence, a particular contract without FMC and non-
performance due to impossibility will be governed by Section 56 of Indian Contract Act, 1872. A
particular contract will be termed as void and cannot be revoked even if the circumstances
surrounding the contract change in the future, invoking Section 56 would cease the contract from
existing, following due remedial process. A party to a contract cannot ignore the performance
merely because of an untoward event, moreover in light of the circumstances existing when such a
contract was made, party has to prove that they never agreed to be bound in a fundamentally
different situation66 which had unexpectedly emerged. The different situation here being the
untoward event, if this is clarified, an FMC can be invoked because this leads to impossibility of
performance in a condition that the party never accepted as part of their contract. Hon’ble SC in
Energy Watchdog vs CERC 67has substantively discussed on Force Majeure even though the
approach was narrowly construed, it significantly noted, “As has been held in particular in
(Mugneeram) Satyabrata Ghose Case, when a contract contains a force majeure clause which on
construction by the Court is held attracted to the facts of the case, Section 56 can have no
application”. Therefore, Hon’ble SC has clearly stated that in presence of FMC in a contract, the
same will not be governed by Section 56 and the parties to a contract have to dissolve such
contract even in extraordinary situations only as per the FMC. There is no remedy under Section
56. Lastly, while applying Doctrine of Frustration, courts have increasingly opined that, intention of
parties in implied sense should be construed depending on the terms of the contract i.e. practical,
commercial purpose of the contract, how the parties intended to carry out the performance, etc.
EST ALTERNATIVE? Invoking Section 56 will lead to immediate termination of contract while
invoking FMC shall save the performance & the contract by pushing it to a future bracket. However
in a situation when the latter is not part of your contract, you have to be very careful because of the
fact that any remedy under Section 56 i.e. Frustration, shall mean that the very contract will cease
to exist forever. Even in a future time frame if surroundings return to normalcy, such a contract
cannot be revoked or enforced. So in order to avoid hasty dissolution through Section 56, it is
important that parties to that contract analyse the situation well before seeking any remedy.
https://www.inspirajournals.com/uploads/Issues/461892297.pdf - imp, has a good summary- FM

embodied in 56- also has govt notice on FM.
force majeure clause is a contractual term that exempts one or both parties from performing their
duties when event is beyond the parties’ control, rendering contract execution impracticable or
impossible. Although force majeure is not statutorily defined and the parties are free to agree
contractual conditions, the law acknowledges that a force majeure provision is obligatory. There are
2 sections relevant under Indian Contract Act,1972- Section 32 (Enforcement of Contracts
contingent on an event happening) and Section 56 (Agreement to do Impossible Act). Unlike many
civil law systems, English law does not have a general notion or definition of force majeure, and it
only applies to the degree that it is contractually accepted. As a result, a party's capacity to claim
force majeure (and the impact on the contract in issue) will be determined by the inclusion of a
force majeure provision and its specific wording
n Satyabrata Ghosh v. Mugneeram Bangur3 , the SC of India recognized that when a force majeure
event occurs with an express or implied clause in a contract, it is governed by Section 32 of the
Indian Contract Act, whereas when a force majeure event occurs outside of the contract, it is
governed by Section 56 of the Contract Act. Section 32 It states that “Contingent contracts to do or
not to do anything if an uncertain future event happens, cannot be enforced by law unless and until
that event has happened. If the event becomes impossible, such contracts become void.”4 A party
to a contract with a Force Majeure provision must establish the following under Section 32: ➢ the
force majeure clause must include the event that caused non-performance; ➢ the non-
performance was caused by the aforementioned event; ➢ the non-performance was beyond the
party's control; and ➢ there was no other method of performance.
From- https://www.ijlsi.com/wp-content/uploads/Validity-of-Contract-in-event-of-Force-Majeure-
with-reference-to-Pandemic-in-India-and-Singapore.pdf (
II. CASE LAWS (INDIA) What constitutes force majeure under Indian contract law varies greatly
according to the kind of contract agreed upon. The courts have adopted a very restricted approach
to construing force majeure provisions, ruling that they can only be used if the duties have truly
become impossible to fulfil, not only when they have become more onerous or less profitable.
Here are some case laws to substantiate the facts. In Satyabrata Ghose v. Mugneeram Bangur &
Co6 lawsuit over the non-completion and nonallotment of a real estate project owing to the
government's temporary seizure of property for military use during World War II was resolved.
The question that was examined was whether the fact amounted to contract frustration. The court
ruled that a contract might be declared frustrated if its fulfillment is “impractical” and “useless” in
terms of parties’ goals and purpose, despite it being not literally impossible. This was also the
landmark case for force majeure as here court observed that section 32 and section 56 can be used
for determining the application of force majeure. In the case of Dhanrajamal Gobindram v. Shamji
5 Ibid 6 Supra at,2 148 International Journal of Legal Science and Innovation [Vol. 3 Iss 5; 144] ©
2021. International Journal of Legal Science and Innovation [ISSN 2581-9453] Kalidas & Co.7 , an
agreement was made for purchase of 500 bales of cotton which was not performed. After
providing notice, the seller had exercised its right of resale but buyer returned indicated that the
contract was unlawful and illegal, and that they were not obligated to carry further. The phrase
"ordinary force majeure clause" were used in this contract. The current appeal was dismissed by
the Hon'ble Court. The argument that the contract is unclear because of the ambiguity and
vagueness in the aforementioned wording in the contract's "typical force majeure provision" was
rejected
cmr.edu.in/school-of-legal-studies/journal/wp-content/uploads/2022/02/03-Force-Majeure-in-
Commercial-Contracts.pdf- VVV imp for this topic! Plz cite plus has new case laws – CERC acche se
analysed and new cases for the COVID section too.

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PART I/II- https://www.scconline.com/blog/post/tag/force-majeure/ - start from this blog please

https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=3495&context=vlr – This has a

https://nludelhi.ac.in/UploadedImages/be41ba6a-5b69-401a-af05-0496ff3d942f.pdf - has very

http://www.austlii.edu.au/au/journals/AUMPLawAYbk/2004/17.pdf - VVV IMP! Has frustration and

file:///C:/Users/PIYUSH/Downloads/alr,+37-2_7_Paulus_and_Meeuwig.pdf – please read whole,

FM is general plus non-exhaustive plus liberal interpretation - giving broader meaning

Contra proferentum plus restricti

- Restrictive interpretation vs liberal interpretation

- Non exhaustiveness of the contract

- A general principle not dependent on express contractual provisions

- has a para on ejusdem generis

Beyond the Contractor’s Control” https://www.lexology.com/library/detail.aspx?g=781ece83-

“(iv) Accident at the mines, railway or port; …

(viii) Partial or Total interruptions on railways or port; …

https://indiankanoon.org/doc/1590593/ - this case might be imp

Use below for restrictive interpretation-

ADD to RESTRICTIVE INTERPRETATION

FORCE MAJEURE WAALI BOOK.pdf

https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=3495&context=vlr – PLZ READ

file:///C:/Users/PIYUSH/Downloads/alr,+37-2_7_Paulus_and_Meeuwig.pdf – has a case on contra

FORCE MAJEURE AND ITS RELATED CONCEPTS

FM AND FRUSTRATION- I HAVE A LOT

https://www.bennett.edu.in/wp-content/uploads/2021/06/Article-11.pdf - imp stuff on frustration

https://lorenz-partners.com/hardship-clauses/ below from

UNIDROIT Principles of International Commercial Contracts[17] define the criteria for

LIMITATION OF LIABILITY CALUSES- https://www.jdsupra.com/legalnews/limitation-of-liability-

EXEMPTION CLAUSES - https://juro.com/learn/exemption-clauses

What are the different types of exemption clauses?

Same thing reiterated in more detail wid example- https://www.concordnow.com/blog/types-

- Cant find anything on these and their relation to FM

SUPERVENING IMPOSSIBILITY - https://www.werksmans.com/firm-news/force-majeure-and-

Beware – invoking supervening impossibility could lead to termination of the contract.

https://www.grin.com/document/37770 - read, see if imp

From FM waala book-

- Financial diffciulties/ eco commercial problems

Application of the principle of Force Majeure:

WAR- use the ICC case doc

TREATMENT OF FORCE MAJEURE CLAUSES IN THE COMMON LAW

STUFF YOU CAN USE FOR INTRODUCTION

Then you refer to court judgements that have defined it-

From FM waala book-

FORCE MAJEURE AND INDIA

OCTRINE OF FRUSTRATION & IMPOSSIBILITY: IMPACT ON CONTRACTS WITHOUT FORCE MAJEURE

https://www.inspirajournals.com/uploads/Issues/461892297.pdf - imp, has a good summary- FM

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