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?
