Hi - at my workplace we are mainly dealing with FX related claims that are being submitted as force majeure. In these cases, they are (b) - in that did the party have an opportunity prior to the FM event occurring to reasonably speaking, manage and treat the risk.
! disclaimer - I don't know anything about Australian law !
but I don't see how option a) can be reasonable.
Risks can appear as time goes by due to changing circumstances and something that is not reasonably foreseeable at one point in time could well be later on.
My apologies for the delayed reply to your question.
In general, the clause is referring to an issue that you could reasonably have anticipated and therefore could have prepared for it in some way. That means not only before inception of the contract, but also during its performance.
Even in a case where Force Majeure applies, there is a duty to take reasonable measures to mitigate its effects.
In the case of the pandemic, there are many debates over whether and in what circumstances it represents a Force Majeure event. However, even when disallowed, there may be grounds for claiming frustration of contract or impossibility of performance due to related events.
erdemir engineering management and co...
Hi Semih - great question, especially as I think that we're yet to see the full impact on many supply chains of this incident.
There will be many suppliers and their customers having discussions about the potential application of this clause. One of the most simple definitions from the internet is set out below :
Unforeseeable circumstances that prevent someone from fulfilling a contract.
It's instances like this where I go back to what was a watershed moment for myself and many others in the audience when Bruce Everett and Tim Cummins challenged the audience in New Zealand last year, asking why we spend so much time trying to get the best supplier on board to give us the best possible outcome - and then run straight to solicitors when something goes wrong. Perhaps now is that opportunity, if you haven't already adopted the IACCM contracting principles into documents, and think about how you might engage directly with suppliers and customers and hope that they remember back to when everyone was happy that both felt excited to be part of a new relationship - and how to maintain that through what might be a challenging time around the globe.
If you've got a strong relationship with some of your affected suppliers, no doubt you've had a chat already about this.
If not, then perhaps you could kick that off by extending out to them the olive branch to start these discussions.
Thanks for your post. I forwarded it to Tim Cummins, our Founder and President and he wrote this blog for you and others who are interested in the impact of the virus
• Parker Hannifin Corporation, Aerospace Group
I would say yes. This 'Act of God' is causing many companies to shut-down temporarily.
• GKN Aerospace
Yes - in most cases it will be ( unless of course the contract excludes medical issues or similar)
• Norfolk County Council
Might be worth considering what your response was to previous pandemic flu etc and treating similarly
yes, I considered a supervening fact, would be impossible to predict the existence and its effects when signing a Contract...
for me it depends, if the party is from Wuhan, China where the local authorities have declared shutdown or curfew then it may be considered. however if the party is from somewhere not directly impacted with the virus then No. They need to show evidences of the impact which is hindering their obligation to perform the work.
• Pacific Gas and Electric Company
I would describe COVID-19 as an unforeseeable event. It would depend on the nature of a unique good or service to determine if a force majeure clause would apply.
All depends on how your Force Majeure paragraph is drafted. Is your company qualified as "essential?" That could also come into play as well.
Is there a "no consequential losses" clause within the contract? If so, the uncapped liability of small value contracts may not be too large of exposure when you consider the liability has to be directly related to the breach and would naturally occur as a result
I agree with your thought Unlimited liability means Unlimited exposure irrespective of size of contract.
If there is no way to Limit your liability then atlast include a clause that defines a process of identifying liability. E.g If a Mistake happens by your employee due to some vulnerability in Client/Customer systems/process then is it only your fault or customer is also responsible for it ?.. If both parties agree to jointly decide on mechanism for fixing ownership of issue then you get a fair chance to defend yourself. Just my thoughts...
Thank you for your response. Most of these happen to be government contracts where one is unable to propose any changes. Do organizations that work with government customers usually willing to undertake the risk of unlimited liability? I am also guessing that there may potentially be no risk that will require indemnification, in a product supply contract or am I underestimating?
Hi Mark, Happy to discuss. Send me an email via firstname.lastname@example.org and I can talk about the principles I use.
In my view I don't believe, as a community, we have fully bottomed out all the risks associated with these types of engagement.
• Nokia Solutions and Networks Australia Limited
For a very good, concise review of the principles and issues of cloud agreements generally, covering most of your points above (my view anyway), you might also check out David W. Tollen's book "The Tech Contracts Handbook" online or via this website:
I agree with the idea, basically due to the possible huge claims that may cause extreme damage to the supplier.
sometimes the liability is capped to the total amount of the contract money value, which seems only fair to me as a professional against going with unlimited liability clause, however is there any case that this may be rejected by the client?
This is a good notion. I recall many years ago a friend of mine who had a well documented idea for a screenplay. The agent he showed stole it (allegedly) and a big entertainment company benefited (allegedly). My friend wanted to sue and he had a great case, but the other side simply put a giant pile of money on the table with a grinning lawyer sitting on the top of it and he had to back down. If he had the option to settle "a couple of hundred" I think he would have taken it.
• UK Department for Education - Education and Skills Funding Agency
the problem with limiting losses to the contract value is that in a professional services situation for example the advice given will relate to a much higher value. Eg. advice given costs £300,000 but the advice given is about the terms of a construction contract worth £10,000,000. If the works are faulty and have to be rebuilt, and the contract cannot be relied upon as a result of negligent advice, the loss to the client may well far exceed the £300,000 fee level. the client should be able to pursue the builder but here can't due to negligent advice from the lawyer. the client should be able to pursue the lawyer, but if they agreed a cap of £300k they will not get very far.
Hence you often see clients wanting a cap related to the value of the contract advised on rather than the fees paid for the advice. Insurance should be taken out but that may not cover all losses.
Public Works Advisory, Department of ...