contract-law legal-terms
Is there any point in having Force Majeure in a contract?
<p>Isn't force majeure statutorily implied in every contract whether or not explicitly stated.</p>

<p>Further, is there any point in having a definition of force majeure as "including, but not limited to... - Act of God, - etc". </p>

<p>If the definition is "not limited to" wouldn't it revert to a commonly recognised definition in any case ?</p>

<p>Default legal rules can change over time and place. The general rule is that contracts are strict liability obligations and it isn't always clear what circumstances suffice to constitute an exception to that general rule. </p>

<p>Explicitly including a definition and exception avoid the risk that the local default rule will not be the one intended and also provides a way to prove the exception to a non-lawyer without resort to reference to case law or statutes.</p>

<p>Lawyers say "including, but not limited to . . ." to avoid the inference that "including . . ." sets forth a complete definition of the events that are covered.</p>

<p>Again, the default definition could be used, but can vary over time and place and might leave more room for dispute over the meaning as many legal terms have different meanings in different contexts and as the case law definition terms is not always clear or may not even exist in every jurisdiction.</p>

<h2><strong>Force majeure is <strong>not</strong> implied into every contract.</strong></h2>
<p>The point of a &quot;not limited to&quot; clause is to ensure the enumerated items are <strong>definitively</strong> force majeure events. That is, if one of the listed events occurs there is not argument that it triggers the force majeure clause. Events outside the list <em>may be</em> force majeure using the common law tests but this would have to be proved on its own merits.</p>
<p>It's possible that you are confusing force majeure with impossibility: the doctrine that releases the parties where performance is impossible. However, impossible <em>means</em> impossible, not just difficult or more expensive. For example, it is still <em>possible</em> to carry out an obligation to paint a house even if the house is now in a war zone, it’s impossible if the house has been bombed flat. A force majeure clause can deal with external factors that do not amount to impossibility.</p>
