Force Majeure, Generally
Force majeure is a defense to performance that is created by
contract. As a result, each scenario must be analyzed on a
case-by-case basis depending on the language of the applicable
force majeure provision. Nevertheless, the basic structure
generally remains the same:
(a) a listed event occurs;
(b) the event was not within the reasonable control of the party
invoking force majeure; and
(c) the event prevented performance.
Understanding Force Majeure in Tariff Contexts
Cost increases, like tariffs, are often considered by courts to
be foreseeable business risks that do not support invoking a force
majeure defense. Therefore, it would be unlikely that an impacted
party would be able to rely on provision to excuse its performance,
absent a very specifically-drafted force majeure provision (for
example, if the provision expressly identifies new or increased
tariffs as a force majeure event, and the force majeure provision
permits
