Understanding Force Majeure in Construction: The important 4 factors

When it comes to construction, a term often pops up – “Force Majeure.” It is not uncommon to encounter confusion about it, but understanding the basics makes it simpler.

What Is Force Majeure?

Simply put, force majeure refers to unexpected events that disrupt or make it nearly impossible to continue a construction project. These events are usually beyond anyone’s control and couldn’t have been predicted.

Typically, the understanding of force majeure is often confined to extreme weather conditions or acts of God. However, while the definition of Force Majeure can vary from contract to contract and from one jurisdiction to another, there are four primary factors that typically qualify an event as Force Majeure:

• Unforeseeable: This means the contract parties couldn’t reasonably expect the event.
• Unpredictable: This means the event was beyond the contract parties’ capabilities to predict, foretell or warn.
• Unprecedented: It is an event which is entirely new, never happened or extremely rare to happen
• Uncontrollable: means contract parties cannot contain, stop or leverage reasonable power to minimize the impact.

Why Is It tricky to identify Force Majeure?

1. Everyone’s perspective is different: What one party may see as an uncontrollable event, another might argue was avoidable. This difference in perception can lead to disputes.
2. It depends on your contract: Each construction contract has its own definition of force majeure, making it crucial to have clear and specific language in the agreement.
3. Figuring out what caused the delay is hard: Sometimes, multiple factors contribute to delays, making it challenging to pinpoint which ones were caused by force majeure and which were not.

The danger of mixing up Force Majeure and Excusable Delays:

One common mistake is mixing up force majeure with excusable delays. The latter are events that disrupt a project but could have been expected and managed by the parties involved. It’s important to understand this distinction because they require different responses. The simple definition of excusable delays for contractors is all of the delays that are predictable, foreseeable and controllable that are caused by the owner or one of his agents or representatives.

Some contracts put a comprehensive list of what might be executable and what is not.

In Conclusion: Stay informed on Force Majeure

The concept of force majeure may seem complicated, but it’s crucial to differentiate it from excusable delays. Parties should approach this task carefully, with clear contract language and legal expertise. By understanding force majeure and its distinctions, parties can navigate potential disputes more efficiently and protect their interests. So remember, when it comes to construction projects, knowledge is power!

So make sure you stay informed and deploy the right expertise to avoid confusion and potential disputes.

After reading this, would you consider a labour strike at the airport as force majeure?

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Written by: Mo Wahba