Introduction
There are unavoidable circumstances when despite best
intentions, a contracting party is unable to perform in the manner
contractually agreed. To mitigate liability flowing from such
failure to perform, it is common for parties to agree on a
'force majeure' (FM) provision. A FM provision has the
effect of excusing the party affected by the occurrence of
specified events,from the performance of its obligations under the
contract, to the extent it's performance is affected by such
specified event(s). Typically, the events falling under FM are
those which are not within reasonable control of the contracting
parties – whether an act of God or otherwise.
The concept is straight-forward, and one should not expect much
difficulty in preparing a FM provision. Except that the
consequences of not having a well-crafted FM provision can result
in the affected party being burdened with liabilities arising from
non-performance of contract. Thus, a risk which the
