Learn how to ensure that your force majeure clause is enforceable in case of a conference cancellation due to an unforeseen event.

I would never want to allow force majeure language as a Landlord's rep. The industry sought such clauses after 911 as well & they didn't last then either. Everyone wants protection against the unknown and that is why we have good guy guarantees and various types of insurance policies. A Good Guy Guaranty ensures to the landlord that a tenant, who doesn't want to be personally liable, pays rent until they vacate and gives a certain amount of notice that they will be vacating. This provides Owners with protection against a Tenant staying endlessly & not paying. It also protects Tenants by limiting their personal liability. As far as any other risk most can be cured with adequate insurance. Of course not all issues are worth paying to insure.

How can you ensure that a force majeure clause is enforceable?

If you are planning to host or attend a conference, you might be wondering what happens if an unforeseen event, such as a pandemic, natural disaster, or civil unrest, prevents it from taking place. This is where a force majeure clause comes in handy. A force majeure clause is a contractual provision that allows one or both parties to suspend or terminate their obligations in the event of a circumstance beyond their control that makes performance impossible or impracticable. However, not all force majeure clauses are created equal, and some may not be enforceable in court. Here are some tips on how to ensure that your force majeure clause is enforceable.

1 Choose the right language

The language of your force majeure clause is crucial, as it defines the scope and effect of the clause. You should avoid vague or broad terms, such as "any event beyond the reasonable control of the parties", and instead use specific and clear examples of what constitutes a force majeure event, such as "pandemic, earthquake, war, or government order". You should also state the consequences of invoking the clause, such as whether it allows for suspension, termination, or renegotiation of the contract, and whether it affects any other rights or obligations of the parties.

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Jamie Heiberger Harrison

Managing Partner Real Estate law Practice
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I would never want to allow force majeure language as a Landlord's rep. The industry sought such clauses after 911 as well & they didn't last then either. Everyone wants protection against the unknown and that is why we have good guy guarantees and various types of insurance policies. A Good Guy Guaranty ensures to the landlord that a tenant, who doesn't want to be personally liable, pays rent until they vacate and gives a certain amount of notice that they will be vacating. This provides Owners with protection against a Tenant staying endlessly & not paying. It also protects Tenants by limiting their personal liability. As far as any other risk most can be cured with adequate insurance. Of course not all issues are worth paying to insure.

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Peter Mills

Getting clients paid first. Personal Property Securities, Credit Law and Insolvency Expert
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Force majeure relies on the words used in such clause. Also consider the difference between force majeure and “frustration” of the contract, which are not the same thing. Eg COVID did not result in frustration of the sale of a restaurant business as a going concern, and so the buyer had to pay full price. A Force majeure clause however might have saved the buyer, if there had been such a clause.

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Ahmet Kerem Özşahin

Founder - Özşahin Avukatlık
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Nonetheless, being specific in wording and the consequences may not be enough to come up with a force majeure clause with four corners. And even this may not be something you want to have. Thus, being too specific (too inflexible) or too vague (too flexible) will be problematic as well.

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2 Check the applicable law

The enforceability of your force majeure clause may depend on the law governing your contract. Different jurisdictions may have different rules and interpretations of what constitutes a force majeure event and how it affects the contractual obligations. You should check the relevant law before drafting or signing the contract, and ensure that your clause is consistent with the legal requirements and expectations of the jurisdiction. You should also include a choice of law clause in your contract, to avoid any disputes or confusion over which law applies.

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Ulrich Muenzer

Rechtsanwalt, Bar certified specialist in International Business Law at Hotz & Partner
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You cannot foresee everything and write a clause for every possible eventuality. So you should choose an applicable law where it does not depend entirely on what is written in the contract. Avoid jurisdictions who apply the four corners rule!

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Ahmet Kerem Özşahin

Founder - Özşahin Avukatlık
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As for the provisions which the parties may easily agree to refer to a well established and well known jurisdictions, consider designating a well established law for force majeure provisions.

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Margaret Kiernan

Irish Author.
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It must be lawful. It must be a specific event or reason, which must be stated in the contract. Too much latitude leaves it open to interpretation by a person or persons with an agenda.

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3 Communicate and document

If you encounter a force majeure event that affects your conference, you should communicate with the other party as soon as possible, and inform them of your intention to invoke the clause. You should also document the event and its impact on your performance, such as by providing evidence of the event, its duration, its severity, and its effects on your ability to host or attend the conference. You should also keep records of your communication and correspondence with the other party, and any attempts to mitigate or resolve the situation. This will help you to prove that you acted in good faith and complied with the terms of the clause.

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4 Seek legal advice

Finally, if you have any doubts or questions about your force majeure clause, or if you face any challenges or disputes from the other party, you should seek legal advice from a qualified professional. A lawyer can help you to understand your rights and obligations, and to protect your interests and enforce your clause. A lawyer can also help you to negotiate or mediate with the other party, or to litigate if necessary.

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5 Here’s what else to consider

This is a space to share examples, stories, or insights that don’t fit into any of the previous sections. What else would you like to add?

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How can you ensure that a force majeure clause is enforceable?

1

2

3

4

5

1 Choose the right language

2 Check the applicable law

3 Communicate and document

4 Seek legal advice

5 Here’s what else to consider

Conferences

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How can you ensure that a force majeure clause is enforceable?

1

2

3

4

5

1 Choose the right language

2 Check the applicable law

3 Communicate and document

4 Seek legal advice

5 Here’s what else to consider

Conferences

Rate this article

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