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A force majeure clause regulates what happens if you are unable to fulfill an agreement due to force majeure — think of an epidemic, government measures, illness, or natural disasters. With such a clause, you avoid liability and disputes. Without a clause, the statutory rules regarding force majeure apply, but then you must prove yourself that force majeure exists, which leads to uncertainty.
You must honor agreements: if you deliver on Monday according to the contract, you must do so on Monday. But sometimes compliance is simply not possible — due to an accident, breakdown, or extreme weather. That is why you are better off having a force majeure clause in your general terms and conditions.
What does a force majeure clause regulate?
In the event of force majeure, there is a situation that affects the performance of the agreement. The clause states what must happen in such a case. It often defines what constitutes force majeure, with examples such as an epidemic, government measures, illness, and natural disasters — difficult to foresee, but certainly possible. The coronavirus pandemic and associated measures demonstrated how valuable such a clause is.
If a claim of force majeure is successful, you are not liable for damages resulting from your failure to perform the agreement — thereby avoiding substantial compensation payments. You are temporarily exempt from performing (part of) the agreement and may postpone your obligations, which gives you breathing room until the situation passes.
What applies without a clause?
You can invoke force majeure even without a clause: in that case, the statutory rules apply. The law stipulates that performance can no longer be demanded in the event of force majeure. However, you must prove yourself that force majeure exists, that you could not have done anything about it, and that you did not see it coming. This often leads to disputes, especially if you could have taken out insurance or if the situation was not entirely unforeseeable. Moreover, the statutory description is general, leading to debate regarding the definition — it is not certain that COVID-19 and government measures automatically constitute force majeure. The more drastic the measures, the greater the chance of a successful appeal.
There is still a way out: the law contains a rule regarding unforeseen circumstances, under which the judge can modify the agreement. However, he is reluctant to do so, because few circumstances are truly unforeseeable.
Frequently Asked Questions
Do I need a force majeure clause?
It is highly recommended. With a clause, you establish in advance what constitutes force majeure and what applies in that case, thereby avoiding disputes and liability. Without a clause, you would have to fall back on vague statutory rules.
Is the coronavirus automatically force majeure?
Not automatically. Whether the coronavirus or government measures constitute force majeure depends on the circumstances and the extent to which you could have foreseen or insured against it. A clear clause offers more certainty.
What happens in the event of a successful appeal to force majeure?
You are not liable for damages caused by non-performance and may temporarily suspend your obligations until the situation has passed.
Have a comprehensive force majeure clause drafted
The legal experts at MKB Juristen include a clear force majeure clause in your terms and conditions, ensuring you are protected in the event of force majeure. View our expertise in contract law or schedule an intake meeting .
