Recently, a member of one of the mastermind groups I’m in asked if he should modify the force majeure provision of this contract template in case he encountered a situation where he was unable to perform as promised due to restrictions related to COVID-19.
Force Majeure = Worst-Case Scenario Clause
Force majeure comes from Latin meaning “superior force” and applies to unforeseeable circumstances that prevent someone from fulfilling a contract. A force majeure provision will state that One or both sides of a contract are not liable if they’re unable to perform their obligations due to circumstances that are outside of their control.
A force majeure clause might say something like:
Consultant shall not be liable for failure or delay in performance of Services if such failure or delay is a result of causes and/or circumstances beyond the Consultant’s reasonable control and without its fault or negligence.
Including, But Not Limited To . . .
Many times, this provision includes a list of things that qualify as force majeure situations. This list may include, but is not limited to:
- Accident
- Illness
- Riot
- Strike
- Natural disasters
- Terrorist attacks
- Failure in transportation
- Acts by deities (I prefer this over “Acts of God” because it’s more inclusive)
- Fire
- Flood
- War
- Zombie apocalypse
Remember: You can put in anything you want in a contract as long as it’s legal.
It’s important to include the phrase like, “Including, but not limited to,” so you don’t inadvertently limit want counts as a situation when the force majeure clause would apply.
Written Broadly on Purpose
This provision is purposely written broadly to cover any situation outside the person’s control that would impact their ability to perform their obligations under the contract. Going back to the question from my mastermind group, he’s a professional speaker and his provision had the “including, but not limited to” list that included “illness” and he asked the group if he should also include “public health emergencies.”
The word “illness” is broad. It could apply to situations where:
- You get sick.
- A family member gets sick.
- There’s an epidemic in the country where you’re supposed to be going, and officials have closed the border.
- There’s an epidemic and even though you can get to the location, if you do, you’ll be forced into a quarantine for 14 days afterwards, which will force you to miss your next speaking engagement or otherwise take care of your family.
Mitigate Damage
When a person is required to rely on the force majeure provision of their contract because they were unable to deliver as promised, both sides are required to mitigate their damages. For example, a photographer might have to cancel an outdoor photo shoot due to rain. The way to mitigate that damage is to reschedule for another day.
I’ve seen a professional speaker get into a situation where something interfered with his ability to travel to an event. The speaker and the event mitigated their problem by having him present remotely instead.
Always Have a Lawyer Create Your Contracts
Most, if not all, of the contract templates I create for people to use in their business includes a force majeure provision.
To date, I have never seen a contract template that was downloaded from the internet that was good to use as written. When it comes to the contract templates that impact your life and/or livelihood, it is worth the investment to hire a lawyer to draft or at least review the contract before you use it with a client. You don’t want to find out the hard way that there are gaps in its terms.