In this post you can see the most recent version of my force majeure language. (Excuse the blood, sweat, and tears!)
But one change the current version doesn’t reflect is something that Chris Lemens and A. Wright Burke both requested—that I get rid of the phrase force majeure. Here’s what Chris said in this comment:
I’m highly prejudiced against law-French, even more than law-Latin. Can we not just title this section “Excused Performance” and the event an “Excusable Cause” or something?
Here’s why I didn’t make that change:
When I’m debating whether to replace a traditional term of art with something clearer, I weigh the pros and cons. The phrase force majeure sure is foppish and archiac, but it’s otherwise harmless. And it’s in widespread use: I’m not sure how realistic it is to expect that people would readily use instead “Excused Performance” or some other alternative.
By contrast, the shortcomings of phrases such as represents and warrants, indemnify and hold harmless, and time is of the essence involve more than their tone—they hold the potential for confusion and dispute. That’s why I agitate for getting rid of them, no matter how standard they are.
So I think that in the case of force majeure, the cost of change outweighs the benefit. Is that the right call?
“Force majeure” is not foppish, and it’s not archaic, and it’s not Law French. It’s *real* French, and it’s a concept well developed in French law and embedded in the civil codes of civil law jurisdictions (maybe even Louisiana, but I haven’t checked). Because lawyers in common-law jurisdictions came to the idiotic conclusion at some point (abetted by some idiotic judges) that a contractual commitment was a hell-or-high-water obligation unless you stated otherwise, the concept of force majeure was latched onto as a welcome palliative.
I grant that if you say “excused performance” as the heading on a contract clause you won’t be misunderstood when the substance of the clause is as you have it, or what standard contract language usually puts in, corresponds to the concept, but neither will you be misunderstood if you call it force majeure.
Common-law jurisdictions will not automatically apply force majeure concepts to contracts (other than the very limited extent to which the impossibility doctrine applies) nor flesh out incompletely drafted clauses, but nor will they or parties be confused if you use that title with a clause that clearly sets out what it means to say. The term “force majeure” is well-enough understood in the business community that it’s no detriment to retain it.
I stand corrected: what I should have said is that it’s not English. But otherwise we agree.
Agreed, Vance. And in modern French law, according to the French contributor to one of the books that I edit, force majeure is defined as:
‘any event that is external (extérieur), unexpected (imprévisible), and irresistible (irrésistible)’.
The French like to think they don’t rely on case law, but each of those words probably has a well-lacquered gloss on it through court and scholarly interpretation. The one virtue of the common-law insistence on spelling it out is that drafting customs developed that call for things in a force majeure clause, like strikes and raw materials shortfalls, that might not qualify under one or more of those three rubrics read literally.
So if “force majeure” is an event, is “Force Majeure Event” a redundancy?
You won’t be surprised to hear that force majeure means “major force.” So “event” isn’t redundant.
We had a similar debate in my office and we opted to change the title of the clause to “Interruption Event” when we revamped the clause. It makes more sense to our clients even though they tend to be familiar with the original title.
It’s interesting to know that some people are open to using a clearer term. That suggests that I should be more open to that possibility too.
And I like your choice of “Interruption Event.”
Thanks Ken. I’m on a mission to really rework the wording we use in our documents. My current goal is to reach a point where my clients don’t ask me to sit with them and explain the documents we prepare for them.
I think clients tend to stick with terms that seem familiar to them because some sort of familiarity is comforting where they have no idea what the rest of it really means. If we can give them better wording that they understand, I think they will let go of the familiar and more obscure terminology.
Adopting the term “Interruption Event” is part of the process but we still have a way to go here.
Greetings – New to the party, thanks for the drink. At the risk of sounding narrow-minded, I’d prefer to get rid of MOST FM clauses. Ok, that’s whiny. At a minimum, I ask that parties actually consider whether FM (or whatever deemed excused performance provision you prefer) is appropriate for the transaction. I spend a lot of time in tech and service agreements – and 9 times out of 10, when I explain to a purchaser of services the effect of a FM provision, they immediately react by saying, “no, that isn’t what I want”. Granted, some form of FM sometimes makes its way into the agreement – but it’s narrow as possible, permits the purchaser to cancel the agreement without penalty or liability, does not exclude performance related to sensitive items such as confidentiality, protection of intellectual property, etc. The long and short of it is that drafters of service agreements need to actually read the FM boilerplate and add it to the list of discussion points with the commercial terms of the agreement. You will find that a FM discussion often bleeds into expectations for service levels, what kinds of insurance the parties should carry in relation to the project, termination rights and responsibilities, etc., etc.. If agreements are intended to set expectations and allocate risk, discussions and negotiations about FM should be right up there with price and payment.
Welcome. Where have you been the past seven years!
This post assumes that you’re using an FM provision. Whether you should even have an FM provision is a different inquiry.
Yes, FM provisions are overused. I gather that they originated in big construction contracts, but now people ask me to put them in the most basic commercial contracts. I devoted a paragraph to that in the following post: https://www.adamsdrafting.com/superfluous-provisions/
I’ve been in private practice and billing hours . . . I am only permitted to come up for air once every seven years or so.
Yes, I’ve been frantically trying to catch up on posts – it’s clear that as a drafting geek I’ve finally come home.
What I find interesting is that our drive to make better drafting continues to underscore that contracts are so much more dynamic than people want them to be. For example, an interesting discussion about scrapping the word “Force Majeure” highlights that attempting to rename it is in the eye of the beholder. “Excused performance” – sounds like construction, leasing, or bulk purchasing, and implies the parties’ relationship might be over. “Interruption Event” – that’s more of a service agreement or an acknowledgement that a delay could be tolerated to some degree. I think that people who want contracts to be simpler are quick to overlook how complex business relationships can be. Instead of simplicity – maybe what they mean is “clarity” – which is, I believe, the goal of those who want to become better drafters (which is (sadly) not the goal of many who practice commercial law and are often found holding the pen).
What plagues my practice every day are the people who think form agreements should be readily available, on hand, and perfect for their transaction. There was an earlier post about form agreement repositories – and I chuckle. It, on some level, suggests that all business transactions can be reduced to all boilerplate. On the other hand, as Mr. Adams points out, there are basic challenges to setting up a workable system. And two variables I frequently see are (1) attorneys who don’t care about being better drafters (hubris? laziness? both?) and (2) that “good drafting” means several (sometimes competing) things. Heck, every client with whom I’ve worked has a different take on what “good drafting” means. What we end up with in my practice are clause repositories based on client. Back to the point about “forms” – I think it’s appropriate for a client to question his outside counsel bill when they take 80 hours drafting a basic asset purchase deal. That’s asinine. But to say that your outside counsel can just dust off a form and hand it over at no cost (or as a value-add) is equally ridiculous. I’m sure most private practice folks find themselves somewhere in the middle, and know both colleagues and clients who are at the aforementioned extremes and probably call them a$$holes behind their back.
Rant over – back to my hole. I’ll put down .4 for 1-1 time. Ha!