burden-of-proof force-majeure
Is there a burden of proof of a force majeure event occurring?
<p>I have a contract with an equipment hosting company that contains a 'Force Majeure' clause. I was informed a few weeks ago that this clause was activated due to a blown transformer caused by unusually warm weather forcing my hosted equipment to go offline for an extended period while the company moved my equipment to a new facility.</p>
<p>My question is whether the use of this clause in this event carries some burden of proof with it. I have no idea if the weather caused some kind of misfortune. Does this company have to prove this to my satisfaction?</p>

<h2 id="if-you-dispute-the-assertion-yes-r41h">If you dispute the assertion, yes</h2>
<p>At this point the company has made an unevidenced assertion. You can either accept that assertion or dispute it.</p>
<p>The exact dispute resolution terms will matter if you do dispute it but, notwithstanding, they will all necessitate that each party provide some evidence to support their position. That will either convince the decision maker (you in a negotiation or mediation; someone else in an arbitration or court) or it won’t.</p>
<p>In a determinative forum like an arbitration or court since they are relying on the assertion, they have the burden of proving it on the balance of probabilities. In this case, they would have to prove the transformer failed, that it failed because of the weather and that that event falls within the scope of the specific force majeure clause.</p>

<blockquote>
<p>Does this company have to prove this to my satisfaction?</p>
</blockquote>
<p>No, or the contract would have specific provisions to that effect.</p>
<p>It is when you dispute (for instance, in court) the company's allegation(s), though, that the company will have to prove to the fact-finder that resorting to the clause was reasonable. Short of acting vexatiously, you will be entitled to rebut in the proceedings the relevance and/or sufficiency of the company's allegations and evidence.</p>
