Considering the Rationale of Incorporating Force Majeure Clauses in Commercial Contracts Between the Parties to a Commercial Contract

Abstract

Force Majeure clauses are often incorporated by practising lawyers (other than Counsels) as a matter of practice in drafting commercial contracts, be they domestic or transnational, apparently without realising that the way they aim at protecting the liability of their clients may not succeed as the English Courts often have rejected the force majeure clauses by finding that their client was still liable to perform its/his contractual obligations, and in consequence, their client has been instrumental to frustrating the contract. The legal situation of force majeure may however be different in respect of construction industry or import-export trade, for example. After briefly discussing the origins of the doctrines of frustration and force majeure, and also identifying the circumstances in which the English Courts might confirm the demise of a contract by frustration, this Article has attempted to consider the usefulness of incorporating force majeure clause in commercial contracts, be they domestic or transnational in nature or whether the parties are private entities or public entities or even private-public entities. The opinions expressed in this Article are those of the authors, and in no way may they be attributed to the institutions with which they are affiliated.