Chapter 26 - § 26.9 • FORCE MAJEURE

• Jurisdiction: Colorado

§ 26.9 • FORCE MAJEURE

Force majeure clauses excuse performance of a party if the party is unable to perform because of circumstances beyond its control (or, better stated, "beyond its reasonable control," since no one, in an absolute sense, controls very much). Force majeure clauses are very common in construction contracts; in construction particularly, there are a lot of variables and, as the bumper sticker says, "Stuff Happens."

Clauses providing for force majeure (French for "greater force") come in a variety of forms. Sometimes the term is used in a clause without definition (e.g., "The work will be completed within ten days, subject to force majeure."). This leaves it to the parties to agree, or the courts to decide, whether a particular event excused the performance. Some clauses do not use the term force majeure at all, but define the events that excuse performance: war, hostilities, civil insurrection, invasion, terrorist action, strike, labor dispute, lockout, riot, crime, weather, acts of God (e.g., earthquake, flood, tornado, hurricane), governmental re striction, embargo, inability to obtain labor or materials, or interruption in the supply of water, sewer, electricity, or telephone service. Usually there is a catch-all: "or other cause beyond the reasonable control of the performing party." Note that if there is such a catch-all, or if the list begins with the words "any cause beyond the reasonable control of the performing party, including, without limitation . . . ," the list is illustrative, but not the operative term. The legal effect of such clauses is the catch-all or lead-in — anything that is beyond the reasonable control of the performing party can be the basis for an excused delay.

Negotiation of the force majeure clause...