Here’s one clause you have almost certainly had to use a Quantity Surveyor in 2020 & 2021. Force Majeure. Hopefully it’s not a clause we will need to use in 2022 but I guess we will soon find out.
The term ‘force majeure’ comes from French law, where the literal translation is ‘superior force’. You may have heard of Vis Majeure which refers to an act of God. Whilst in France, the term has a defined legal meaning, in English law it does not, and it is dealt with in different ways by different forms of contract.
Very broadly however, it relates to exceptional, unforeseen events or circumstances that are beyond the reasonable control of a party to a contract and which prevent or impede performance of their obligations under the contract. Generally it cannot be an event that the party could reasonably have avoided or overcome, or an event attributable to the other party.
Examples of Force Majeure include;
· Natural catastrophes such earthquakes, floods or volcanoes
· Strikes (other than by the contractor or subcontractors)
· Exceptionally adverse weather. This is usually a one in one hundred year event
· Wars & other hostilities such as terrorism
· Unforeseen changes to legislation
· And epidemics or pandemics
This is where you would have probably used or tried to use this clause. 2020 and 2021 has been unprecedented and so to have the claims relating to it. So is Covid-19 a force majeure event?
According to a RICs article published in 2021, “The precise words used in a contract matter, both in the standard contract and any amendments. JCT contracts refer to force majeure without any further explanation. In the case of British and Associated Industries (Cardiff) Limited v Patley Pressings Limited, the term ‘the usual force majeure conditions shall apply’ was found to be too vague and therefore unenforceable. However, it is unlikely a court would find the JCT force majeure clause void; this would have serious repercussions for the construction industry – if an extension of time is not given a contractor may potentially be liable to pay damages for a delay to the completion.
In a far longer definition, the NEC requires the event to have such ‘a small chance of occurring’ that it would have been unreasonable for an experienced contractor to have allowed for it. For the NEC foreseeability is crucial.
Unfortunately, there is no guaranteed answer as to whether COVID-19 is a force majeure event for any given contract. Bearing in mind the impact the pandemic has had on the country, the economy and construction, RIC’s view is that COVID-19 is likely to be a force majeure event, particularly under a JCT or NEC Contract.”
Why not watch our video on Force Majeure In Construction?