When reading for the first time a typical Force Majeure Clause, most people are surprised to find the term “Act of God” therein. Contracts between businesses shouldn’t be mixed with religion, should they? Don’t worry, at the end of this article, it will all be much clearer.  When watching the one-but-last “Tour de France” stage (cycling) in the Alps in 2019, I became inspired to write about that provision.

“Living like God in France”

In Dutch language, there is an expression “living like God in France”. With a bit of a twisted interpretation – I admit – one could say “God is living in France”. Note: all this is meant to be read in a figurative way.

The events that occurred during that stage were very emotional for the French. After 30 or so km, the local racer that is currently the best in riding uphill – Thibaut Pinot – had to leave the race with a, very uncommon for cyclists, muscle strain. This brought to an end French hopes that he could win the 3-weeks race and bring a first French victory in several decades.

But, not to worry, another French racer was still in the lead – Julian Alaphilippe. Unfortunately, later that day, he couldn’t follow one more attack to his leadership and was pushed “virtually” out of the yellow (leadership) jersey. Virtually means, in this context, to become the leader if delays remain the same when reaching that day’s finish line.

Act of God

So much French emotion in one single race – losing hope to have a national win after many years, which would (almost) be worth more than winning the football world championship – even brought some of the television commentators to tears.

So, to bring all these emotions to an abrupt end, an extreme weather event took the race by surprise. Images came in from the consequences of a localized hailstorm. On the road, some ten kilometers before the racers current position, one could see a massive accumulation of white hail, inundations and even muddy landslides.

Back to contracts

Force Majeure is an unexpected event preventing someone from doing something what is written in a legal agreement / contract and could not have reasonably be avoided or overcome. It should be beyond the contractual Party’s control and not substantially attributable to the other Party. When a Force Majeure event is recognized, the practical result is an extension of time corresponding to the consequences of the Force Majeure event.

Typically, the Force Majeure definition in contracts includes some explicitly cases, including “Act of God”. Act of God, as per the definition of Cambridge Dictionary, is “an event such as a very bad storm that cannot be prevented or controlled and usually cannot be insured against”. This is in contrast to other Force Majeure events that are the act of persons such as war, terrorism, strike, etc.

So, when an such an Act of God struck the Tour de France, the directors of the Tour had to take action quickly and “suspend” the race. Clearly, this suspension could not be just for the duration of the hail storm, which was very short. It should cover the consequences of the Force Majeure event, i.e. the impossibility to cycle on the road to the destination. In this particular case, times of the riders were taken – retroactively – at the top of the last climb before the Act of God and the race would only be resumed the next day.

A word of regret

Famous contractual concepts as “Force Majeure” and “Act of God” are gradually been taken out of contracts and replaced by alternative wording.

Force Majeure has been replaced in the 2017 “rainbow suite” from FIDIC by the term “Exceptional Event”. That’s a pity for one of the last remaining French terms. Should we also start replacing FIDIC by IFCE? The latter would be the abbreviation of the International Federation of Consulting Engineers, replacing the acronym for its French name Fédération Internationale Des Ingénieurs-Conseils.

A bit of tradition can also be fun!

About AfiTaC

AfiTaC.com is the blog on commercial and contractual subjects for the Project Businesses (Construction, Infrastructure, Oil & Gas, Power & Renewable, Water Supply & Sanitation, etc). Its objective is to stimulate reflection, learning, convergence to balanced contracts and positive dispute resolution. You can subscribe to our newsletter by writing to “newsletter@afitac.com”. You can also connect to our LinkedIn page. Engagement with the readers is what keeps us going. So, don’t hesitate to exchange with us by commenting here below, liking our publication on LinkedIn and writing to us “info@afitac.com”. 

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Thembelani Tumeni · 18 March 2020 at 22 h 56 min

Thank you very much for such a good explanation. I am an ex Eskom employee I applied the NEC for managing of contracts and its were I got exposure on the term Force Majuere. I want to know if we can apply the term FM in the wake of COVID 19 as declared a pandemic by WHO. Even the President of the RSA has taken drastic steps to withdraw VISAS to affected countries.

    Jan Bouckaert · 21 March 2020 at 15 h 14 min

    Glad you liked the explanation. Thank you for your interest!
    Yes, you can use FM in this case of COVID 19.

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