Even if you’re not a lawyer, you’ve probably heard the phrase force majeure, which is French for “use the force, Luke.” Not as clumsy or random as the Latin, vis major. It’s an elegant phrase, for a more civilized age.
Force majeure actually means something like “superior force,” and it’s a concept you find in contract law. It’s the idea that a party to a contract is excused from strict performance of the contract’s terms if some extraordinary event beyond that party’s reasonable control prevented performance.
Force majeure is closely associated with an English phrase, “act of God,” which gives you an idea of the kind of event we’re talking about: hurricanes, tornados, cats and dogs living together.
Force majeure in contract law
Force majeure is an exception to the general rule of contract law. Unlike the law of negligence, contract law is usually not concerned with fault. If a party fails to perform a material requirement of a contract, it has breached the contract and is liable for the resulting damages to the other party. Generally, it doesn’t matter if the breaching party has a good excuse. You might say contract law imposes “strict liability” on the breaching party. It’s a “no fault” regime.
Is that fair?
Here’s one way to look at it: the whole point of a contract is to allocate risk between the contracting parties. Let’s say Pop Tarts are currently trading at $2.00 per box. If we sign a contract that says I will deliver a truckload of strawberry Pop Tarts to your store in 30 days for $2.00 a box, I’m taking the risk that the price will go up, and you’re taking the risk that the price will go down. If there’s a run on Pop Tarts after we sign the contract and the price doubles, I don’t get to complain that the contract price we agreed on isn’t fair.
That’s what I mean here by “strict liability.”
But this concept has its limits. In 1712, the King’s Bakers Company signed a contract to deliver 13 dozen strawberry tarts to Ye Olde Tavern for 15 shillings per dozen. An extraordinary cold snap destroyed that year’s strawberry crop, and the King’s Bakers could not deliver. The English court adopted the rule of force majeure, holding that this act of God was an unforeseen circumstance that excused the seller from performing.
Ok, I made that case up, but that was basically the common-law rule of force majeure. Then lawyers started incorporating this concept into the contracts they wrote. Today, force majeure is no longer a common-law rule that applies to all contracts. The issue now is interpreting the scope of the particular force majeure clause the parties agreed to (if any).
This should make it easy to figure out if a particular occurrence qualifies as a force majeure event. Just look at the definition in the contract.
But I know my Fivers. You’re shaking your heads no. You know it’s going to be more complicated than that.
A typical force majeure clause
Let’s look at an example. Here’s a typical force majeure clause:
I’m sure you see the obvious problem: no Oxford commas. But let’s set that aside.
This definition has a two-part structure that you see in many legal definitions, whether in a contract or a statute. It defines a key concept by listing specific instances followed by a broader “catch-all” clause.
In this case, there are seven instances listed:
- act of God
- governmental authority
- labor disputes
Those are the specific enumerated events that qualify as force majeure. They are followed by the catch-all: “any other cause not enumerated herein but which is beyond the reasonable control of the Party whose performance is affected.”
It is, of course, a little more complicated than that, because one of the seven specific things is “act of God,” which is also a kind of catch-all. But you get the idea.
The interesting thing about this kind of structure is that the catch-all informs interpretation of the enumerated events, while the enumerated events inform interpretation of the catch-all. (The latter principle is called ejusdem generis–again with the foreign languages!)
We don’t want to take the specific events out of context. Let’s say I can’t deliver the truckload of Pop Tarts because I set fire to my warehouse to get the insurance money. Under a literal interpretation, the force majeure clause would apply.
But obviously, that’s not the kind of “fire” the parties intended. You can see that from the catch-all, which shows the parties intended an enumerated event would only excuse performance if it was beyond the reasonable control of the party affected.
Should we apply force majeure clauses literally?
Let’s take a harder case. Say there’s a thunderstorm in the Houston area the day the truck is scheduled to arrive, and it causes such bad traffic that the truck is late. That’s a “storm,” and it is not an event under the reasonable control of the seller, so if the storm actually prevented timely delivery, the force majeure clause would apply, right?
Most of you are instinctively resisting this conclusion. But why? If you interpret the clause literally, it seems to apply. Shouldn’t a court enforce the “plain meaning” of the words the parties freely negotiated and agreed to?
I think the problem is that, for all our hard-nosed talk about plain meaning and strict liability, we can’t entirely avoid importing our moral notions of fairness into interpretation of the contract.
Our moral intuition tells us it’s not fair for the seller to avoid the contract just because there happened to be a thunderstorm and bad traffic that day. On the other hand, it doesn’t seem fair to hold the seller liable if the truck couldn’t get to the store because Hurricane Harvey flooded the roads.
Is there a way to rationalize this moral instinct, so that judges have an objective rule they can follow to determine whether a particular event falls under the definition the parties agreed to?
A recent case applying a force majeure clause
Let’s look at a fairly recent attempt to do that. In a 2-1 decision in TEC Olmos, LLC v. ConocoPhillips Co., 555 S.W.3d 176 (Tex. App.—Houston [1st Dist.] 2018, pet. denied), the majority tried to solve this problem with a concept that was not stated in the contract but is pervasive in the law: foreseeability. The dissent, in contrast, tried to solve the problem with textualism.
Did either succeed?
The contract in TEC Olmos was a farmout agreement to test-drill land in search of oil and gas. The contract set a deadline to begin drilling and included a liquidated damages clause requiring Olmos to pay $500,000 if it missed the deadline. Id. at 179. By pure coincidence, the force majeure clause in the contract was exactly the same as the example I used above.
Of course, something unexpected happened after the parties signed the contract. In the summer of 2014 the price of oil was over $100 a barrel. By December 2015 it was around $40. As a result of the significant drop in the global oil market, Olmos could not get the financing it needed to do the drilling. So Olmos tried to invoke the force majeure clause to extend the deadline.
The response from ConocoPhillips? You owe us $500,000.
But Olmos had a simple argument for avoiding liability: under the plain meaning of the force majeure clause, the worldwide drop in oil prices and resulting inability to obtain financing was “beyond the reasonable control” of Olmos.
The Court of Appeals disagreed. The court held that the change in the oil and gas market making it impossible for Olmos to obtain financing was not a force majeure event as defined by the contract. The court reasoned that a “foreseeable” event—such as a decline in the oil and gas market—cannot qualify as force majeure under the “catch-all” provision of the force majeure clause. Id. at 181-82, 186.
Foreseeability was part of the common-law force majeure doctrine, but it was not mentioned in the clause the parties agreed to. So was unforeseeability an implied requirement? The court said yes. “A term’s common-law meaning will not override the definition given to a contractual term,” the court said, but “we may consider common law rules to ‘fill in gaps’ when interpreting force majeure clauses.” Id. at 181.
The court explained that “when parties specify certain force majeure events, there is no need to show that the occurrence of such an event was unforeseeable.” Id. at 183. But when the party seeking to avoid performance relies on a catch-all provision, it must show that the event at issue was unforeseeable. Id. 183-84.
The majority reasoned that it would make no sense to allow a foreseeable event to satisfy the catch-all clause. “To dispense with the unforeseeability requirement in the context of a general ‘catch-all’ provision,” the court said, would “render the clause meaningless because any event outside the control of the nonperforming party could excuse performance, even if it were an event that the parties were aware of and took into consideration in drafting the contract.” Id. at 184.
I’m not sure I follow this reasoning. Dispensing with the unforeseeability requirement may render the clause broad—and maybe broader than what is fair—but it doesn’t render the clause meaningless. And shouldn’t we apply the plain language of the contract the parties agreed to? The word “foreseeable” didn’t appear in the force majeure clause.
The textualist dissent
Justice Brown made this point in his dissent. “The contract does not say that an event must have been unforeseeable to suspend performance,” he wrote. “I dissent because the Texas Supreme Court has repeatedly told us that it is this state’s policy to enforce contracts as they are written.” Applying this policy to the force majeure clause, Justice Brown said “[i]f parties wish to limit the scope of their negotiated force majeure provisions to require that an event must have been unforeseeable to excuse performance, it is not difficult to insert that single adjective into their written agreements.” Id. at 189.
Rather than reading an unforeseeability requirement into the force majeure clause, Justice Brown focused on the language of the clause. He emphasized that the clause used the word “hindered,” which dictionaries define to include “get in the way of” and “to make difficult.” “The word hinder suggests a low threshold before the force majeure clause applies,” he wrote. “The party does not have to be prevented from performing, only hindered.” Id. at 199.
In short, Justice Brown took a textualist approach to interpreting the force majeure clause, rejecting the majority’s notion that unforeseeability was implied.
I’m skeptical about whether textualism provides a definitive basis for deciding if a force majeure clause applies. It’s usually going to come down to a question of whether the event at issue falls within the “catch-all” clause, and the catch-all clause is always a little “fuzzy.” The reason there’s a dispute in the first place is that it’s debatable whether the event at issue is covered by the language of the clause. Still, I tend to agree with Justice Brown that the express language of the clause should take priority over a superimposed concept of foreseeability.
Plus, even aside from the the text, there’s a more fundamental problem with making the scope of a force majeure clause turn on whether the event at issue was “foreseeable.”
The problem with “foreseeable”
The majority in TEC Olmos assumed—and the parties apparently agreed—that a worldwide decline in the market causing an inability to obtain financing was foreseeable. Id. at 181 n.1. This was in part due to precedent that a downturn in the oil and gas market is foreseeable. Id. at 183 (citing Valero Transmission Co. v. Mitchell Energy Co., 743 S.W.2d 658 (Tex. App.—Houston [1st Dist.] 1987, no writ)).
But is an extraordinary global market crash any more “foreseeable” than the other “acts of God” typically listed in a force majeure clause? A hurricane, for example, is surely the type of event that can trigger a force majeure clause, but the parties to a contract can foresee that hurricanes happen, especially if they are on the Gulf Coast. An event that has its own “season” can’t be that unpredictable. I would guess a hurricane hits the Gulf Coast more often than the global oil market crashes.
The problem is that you can almost always make a reasonable argument that a given event is or is not “foreseeable.” No, the parties don’t sign the contract expecting that a fire is going to destroy the warehouse. On the other hand, the parties know fires sometimes happen. That’s why people buy fire insurance. So is a fire “foreseeable”?
Foreseeability is a common concept in the law, but after doing litigation for over 20 years, I don’t think the concept is that useful for reasoning our way to a conclusion. I think “foreseeable” is just a label we apply to an event or risk that our intuition tells us a party should be responsible for.
It’s not a binary question of whether an event is foreseeable or not. It’s really a question of how likely the event is, and to what extent the performing party has the ability to mitigate the risk of that event occurring. It’s a sliding scale with these two components.
I think this is the basic calculation we intuitively perform when we decide whether a particular unexpected event is the kind of event that should excuse a party from performance. I confirmed this with a scientific process: going through several hypotheticals with my wife and two kids while we ate tacos at the dinner table. It got a little heated.
But I think my wife hit on something when I asked why a global market drop would not satisfy the force majeure clause. “A market drop is beyond the party’s reasonable control, and that’s what the contract says,” I argued.
“But that’s just not how business works,” she responded. “It’s common sense!”
Common sense. Ultimately, I think that’s the best guide to deciding a force majeure dispute. And whether you agree with that or not, I think that relying on common sense and basic intuitions about fairness is usually what judges are doing anyway, regardless of how they write the opinion.
That’s not very satisfying as an objective basis for deciding disputes. But we just have to muddle through somehow. And based on TEC Olmos v. ConocoPhillips, if you’re a lawyer arguing a force majeure issue, you have to speak the language of “foreseeability.”
Do, or do not. There is no try.
*UPDATE* Remember when I said force majeure is no longer a common-law overlay but solely a matter of the parties’ contract? Well, what if courts applied some other common-law doctrine that also allows a party to a contract to avoid liability when some unforeseen event makes performance impossible or, I don’t know, “impracticable”? See Force Majeure Is Nice, But Have You Tried Impracticability?
Zach Wolfe (firstname.lastname@example.org) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He had to cut the whole section on ejusdem generis because, hey, this is *Five Minute* Law.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.