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The term Force Majeure is derived from the French term which means “greater
force”. It is related to the concept of act of God, an event for which no party can
j ” h b d fi d i Bl k’ L Di ti ‘ t ff t th t
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majeure” has been defined in Black’s Law Dictionary as ‘an event or effect that
can be neither anticipated nor controlled’. The term includes both acts of nature
(e.g., floods and hurricanes) and acts of people (e.g., riots, strikes and wars).[2]
There is no general concept of force majeure in English Law, its provisions are in
expressed terms and generally will not have implied significance into contracts
governed by English Law. The party who is affected under force majeure, will be
typically relieved from performing the obligation and will be awarded with
compensation.
circumstances, whereas force majeure is wider in its ambit and includes both
naturally occurring events and events that occur due to human intervention.
may be impracticable and useless from the point of view of the object and
provisions.
The concept of force majeure has not been defined under the Indian statutes.
This concept has been dealt with the Section 32 of the Indian Contract Act,
1872 dealing with contingent contracts Section 32 of the Indian Contract Act
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1872 dealing with contingent contracts. Section 32 of the Indian Contract Act,
happens, cannot be enforced by law unless and until that event has happened.
contractual view, the doctrine provides a temporary escape to a party under the
majeure event.
2. The parties to the agreement assumed that such an event will not occur;
3. Such an event has made the performance of the obligations under the
4. The parties have taken all such measures to perform the obligations under
5. The affected party claiming relief under force majeure, will have the burden of
proof to show that the force majeure event has affected such party’s
made, becomes impossible, or, by reason of some event which the promisor
could not prevent, unlawful, becomes void when the act becomes impossible or
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which he knew, or, with reasonable diligence, might have known, and which the
promisee did not know, to be impossible or unlawful, such promisor must make
compensation to such promisee for any loss which such promisee sustains
through the non-performance of the promise.” Section 56 says that all the
perform.[6]
After reading the Section 32 and Section 56 of the Indian Contract Act, where
the contract itself has express or implied term according to which it would stand
Section 32 and not under Section 56 of the Indian Contract Act, 1872. They all
are treated as cases of frustration under the English Law, but such cases fall
under Section 32 of the Indian Contract Act, 1872, which deals with the
contingent contracts.
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Judicial Precedents
Mukherjee held that, The Indian Law of frustration which term is interchangeable
1872 as a positive rule of law which does not leave the matter to the intention of
the parties and casts the duty on the court to decide whether the contract is
ended by frustration. To the extent the Indian Contract Act deals with a
principles de hors the provisions in the Act. The English Law of frustration do not
bind us. it is the duty of the court to give relief and hold the contract frustrated
and ended as it is really a rule of positive law under Section 56 of the Indian
choice or election of either party, and the court has to decide expost facto.
2. Alopi Parshad & Sons Ltd. v. Union of India[12]: in this case, M/s Alopi
Parshad and Sons Ltd, were the agents of the Government of India. These
agents use to purchase ghee for the army. Later, the second World War took
place. On June 20, 1942, the original agreement was, by mutual consent,
revised. The rates fixed in peace time were totally altered by the war time
conditions. The agents demanded revision of rates, but they received no reply.
The Government terminated the contract in 1945. The agents claimed payment
at enhanced rates. The Hon’ble Court observed that the contract is not
frustrated merely because the circumstances, in which the contract was made,
are altered. The performance of the contract had not become impossible or
unlawful. The contract was in fact performed by the agents and they received
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Jaganath(seller). The seller agreed to sell 2000 bales of Sadipur N.C. Cuttings.
One of the printed terms provided –“Buyers shall not however be held
where such delay is directly or indirectly caused by god or due to act of God,
the buyer could not perform the obligation due to change in government policy,
imposing total restraint on the import of Pakistan jute. The contention advanced
on behalf of the buyer that the performance of the contract in question has
Indian Contract Act, 1872 and is void, was rejected by the Hon’ble Court. The
Court observed that it is clear from the circulars produced that as early as March
1958 the Government of India had issued warnings that import of Pakistan jute
would be permitted to the absolute minimum and the jute mills should satisfy
their needs by purchasing Indian jute. The buyer was very much aware that the
licenses are not freely issued. The application of import license by the buyer was
majeure. Therefore, it was held by the Hon’ble Supreme Court that there
After looking into the judicial precedents, the response of the judiciary to force
majeure has been rigid. The courts have not allowed economic inability,
j f t t t i t t ti f t t
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In a 2017 case, the Supreme Court cited a 1961 House of Lords decision that
ruled that the closure of Suez Canal, although unforeseen, had not rendered a
contract to ship goods from Africa impossible since a longer route around the
Cape of Good Hope existed.[14] In April 2020, the Bombay High Court did not
lockdowns had frustrated a contract for supply of steel. Although the decision
factored in other arguments, the vague construction of the pandemic reason did
Whether the other countries are implementing the doctrine of force majeure in
this pandemic?
relief to businesses that could not perform their contractual obligations due to
the pandemic.
• China’s Supreme People’s Court had recognised the 2002 SARS outbreak as a
• The Paris Commercial Court in July ruled that the pandemic could be equated
force majeure clause on the current international practices. The Code states that
“the impediment triggering the operation of the force majeure clause must be
beyond the party’s reasonable control; and that it could not reasonably have
been foreseen at the time of the conclusion of the contract; and that the effects
of the impediment could not reasonably have been avoided or overcome by the
affected party”.
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party from performing its obligations under the contract during the period of
such lock downs and such lock downs have to be considered as force majeure.
1 https://www.investopedia.com/terms/f/forcemajeure.asp
2 Black's Law Dictionary Eighth Edition, First South Asian Edition 2015
3 https://indianexpress.com/article/explained/act-of-god-covid-19-lockdown-
economy-impact-6583530/
4 Satyabrata Ghose v. Mugneeram Bangur & Co., 1954 S.C.R. 310: AIR 1954 SC
44
5 https://www.mondaq.com/
6 https://www.mondaq.com/india/litigation-contracts-and-force-majeure
10 Metropolitan Water Board v. Dick Kerr & Co. Ltd. (1918) AC 119
11 AIR 1954 SC 44
14 https://indianexpress.com/article/explained/act-of-god-covid-19
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