Understand and Define Key Substantive Contract Provisions

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The following contract provisions should be clearly understood before undertaking any construction project commences.

March 23, 2020
Phillip L. Sampson Jr. & Richard F. Whiteley, Construction Executive

The following contract provisions should be clearly understood before undertaking any construction project commences.

Force Majeure

Often referred to as an “Act of God,” a force majeure is an event, typically beyond the parties’ control, that prevents performance under a contract. To determine if a contractor need a force majeure clause in its contract, it should ask whether there may be instances where events beyond the contractor’s control could impact its contractual performance? If so, it will want this clause.

Courts currently treat force majeure as an issue of contractual interpretation, focusing on the express language in the contract. Consequently, the scope and applicability of a force majeure clause depends on the contract’s terms. Using broad language in a force majeure clause may help protect against unforeseen events. But to the extent possible, parties should describe with particularity the circumstances intended to constitute a force majeure.

The law relating to force majeure also fairly consistently provides that parties cannot avoid contractual obligations because performance has become economically burdensome. Courts have refused to apply force majeure clauses where an event only affects profitability. Recent attempts to categorize tariffs on construction materials as a force majeure have failed. Unless a tariff or tax is specifically listed as a force majeure event, it is unlikely to constitute a force majeure because it only affects profitability.

Reprinted courtesy of Phillip L. Sampson Jr. & Richard F. Whiteley, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.



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