After a year unlike any other, the force majeure clause in commercial contracts has come under the microscope since the outbreak of the pandemic.

This has led to a number of questions around how and under what circumstances the force majeure clause can be exercised when it becomes impossible for a party to perform due to unforeseen and uncontrollable external factors.

A party can be held liable for a breach of contract even where the breach was caused by an event outside of their control. However, there are ways in which a party that would otherwise be in breach can escape liability for such non-performance. These are to rely on the contract’s ‘force majeure’ clause or, if there is no ‘force majeure’ clause, to rely on the common law concepts of frustration and illegality.

Waterfront Partner Alison Berryman wrote an article advising businesses on how to prepare for the unexpected, and what to look out for when agreeing a force majeure clause in commercial contracts. .

Alison’s article featured in Security Matters.