Preparing for the Unexpected: Force Majeure and Hardship Clauses in Practice

Ewan McKendrick

January 2013

A paper presented to the Centre of Construction Law 25th Anniversary Conference held at King's College London on 28th June 2012

Professor McKendrick introduces his paper by comparing the relative importance of the doctrine of frustration and force majeure clauses, concluding that the prevalence of the latter in practice means there is less need for an expansive doctrine of frustration. The law will largely give effect to contract clauses empowering a party to adjust the terms of a contract, or enabling a third party to adjust the contract terms, but if the contract does not so provide the law will not provide on the parties' behalf. He goes on to consider why force majeure clauses play an important role in modern commercial contracts. He looks at the drafting of such clauses; first the events which trigger their operation (which may be a list of specific events or a more general statement of events), secondly reporting obligations on a party wishing to invoke the protection of such clauses, and thirdly provision for the consequences of the occurrence of a force majeure event. He concludes with consideration of hardship clauses.

Introduction - The role of force majeure clauses - Drafting force majeure clauses - Hardship clauses.

The author: Ewan McKendrick is Registrar and Professor of English Private Law, University of Oxford.

Text 10 pages