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.
Although most users of your website will not read your terms, this is an important part of your business. Having to argue in court is expensive, so a little investment to avert the risk is a pragmatic approach. This article highlights some of the most common points which your terms should cover so that the risks explained below do not crystallise.
If your business involves sending personal data outside the UK and EEA, you may be aware of the need for a transfer risk assessment (TRA) to demonstrate that you have properly considered and mitigated any associated risks.
When it comes to commercial negotiations, they often don’t turn out the way you had hoped and then there is no going back. Instead of struggling on your own, losing a lot of management time and still not being sure you have got the best deal, let us negotiate for you.