No one can predict the future. We live in unprecedented times, with seemingly a new record or history-making event happening every time we check the news. Whether it be record-breaking heat waves, hurricanes, floods, or a pandemic we’ve never seen before, there seems to be no shortage of unexpected events happening all the time. While we may not be capable of planning for every potential event, we can cover ourselves if such an event befalls us and impacts our businesses.
You can better defend your business interests against negative future eventualities by including a clause in your business contracts that forgives missed work and undelivered services in cases of unforeseeable and unavoidable catastrophes. The clause in question is known as a force majeure clause.
What is a Force Majeure Clause?
Force majeure (French for ‘superior force’) can be included in a business or employment contract. The clause relieves both the employer and the employee from liability for not delivering on the duties as laid out in the signed contract. Force majeure is often referred to as an ‘Act of God,’ some unpredictable, unavoidable event that makes it impossible for a party to perform their contractually obligated duties safely and adequately.
Depending on the jurisdiction, the language of the clause may need to be especially narrow and exact in order for it to stand up in court. For assistance drafting a successful force majeure clause that can protect you and your staff from liability, it is strongly recommended that you work with experienced business law attorneys.
Our law firm has years of experience helping clients draft airtight business contracts, including those with well-written force majeure clauses. Please get in touch with our business law lawyers to learn more.
What Are the Elements of Force Majeure?
A force majeure clause must carefully consider all potential risks to a business, even those most unforeseeable. To ensure that you have adequately protected your business, your employees, and your partners, you are advised to speak with an attorney with experience writing force majeure clauses into business contracts.
There are a handful of necessary components that must be included in a force majeure clause.
These necessary elements include:
- It must accurately define a ‘force majeure event’ as precisely as possible.
- It must define the breach for which the contracted party will be excused from liability.
- It must define the cause-and-effect connection between the force majeure event and the breach of contract duties that are to be excused.
- It must detail the resulting outcome of what will follow the excusal from contracted duties due to the force majeure event.
Failure to include these elements in a force majeure clause will likely result in that clause being unenforceable in court.
What Are Common Qualifying Events for a Force Majeure Clause in Florida?
Force majeure events can apply to natural and manmade events of catastrophe.
Examples of a force majeure event may include the following:
- Government labor restrictions.
- Lockouts and industrial disturbances.
- Pandemics and epidemics.
- Terrorist attacks.
- Unforeseeable transportation delays.
Does Force Majeure Law Apply to the COVID-19 Pandemic?
A force majeure clause is meant to provide relief for cases of unforeseen events beyond the power of the individuals to control. The COVID-19 pandemic would certainly qualify in most courts, provided that your force majeure clause stated protection against pandemics. It would potentially stand up in court because the COVID-19 pandemic was beyond the employer’s or their employees’ control, and it made providing service impossible or impractical for a time.
Should the Clause’s Language Be Exact or More Broad?
Generally, it is better to be exact and all-encompassing.
Some jurisdictions, such as New York, narrowly interpret force majeure laws. New York courts will typically only excuse missed work and undelivered services if the exact effect is called out in the force majeure clause. For example, a force majeure contract provision may call for liability protection against natural disasters, but the courts may deem this too vague. A force majeure clause that specifically states coverage against hurricanes has a far better chance of holding up in New York courts when a storm strikes the state and impacts business.
Florida interprets force majeure law more broadly, thankfully, but that does not mean that the clauses are easy to enforce. However, Florida does allow for an additional argument under the law. In addition to allowing force majeure events to prevent the ‘impossibility of performance,’ the courts also allow cases that cause a ‘frustration of purpose.’
Impossibility of performance refers to events that make it impossible for workers to perform their contractually obligated duties without risk of harm befalling themselves or others. Frustration of purpose is a defense in which unforeseen events may not prevent work from being performed but would prevent them from delivering the full benefit of their contracted duties.
Contact Us to Schedule Your In-Depth Case Evaluation
A force majeure clause can help you plan for unexpected acts of god. They are difficult to enforce, however, and need to be carefully worded by a lawyer experienced in Florida business law. For assistance, including a force majeure clause and other clauses in a business agreement, please get in touch with the Central Florida-based Lankford Law Firm. At our firm, attorney Lankford Law Firm and her highly skilled legal team have the knowledge and passion to provide your business with the legal protection and guidance that it needs.
Lankford Law Firm proudly serves clients in Orlando, Daytona Beach, and the surrounding Central Florida area. To schedule your initial consultation, please get in touch with our law offices by calling us at 850-888-8992.