According to Black’s Law Dictionary (8th ed. 2004), a “force majeure” is “[a]n event or effect that can be neither anticipated nor controlled. The term includes both acts of nature (e.g., floods and hurricanes) and also acts of people (e.g., riots, strikes, and wars).” According to the same dictionary, a “force-majeure clause” is “[a] contractual provision allocating the risk if performance becomes impossible or impracticable, esp. as a result of an event or effect that parties could not have anticipated or controlled.”
Might the term force majeure include the current Coronavirus (COVID-19) pandemic? As with many legal questions, the answer to this one is, “it depends.” Believe it or not, however, there is some precedent related to the issue of “…remaining at work in the vicinity of a prevailing epidemic…” In the 1857 case of Lakeman v. Polllard, 43 Me. 463, 69 Am.Dec. 77, the Supreme Judicial Court of Maine heard an appeal dealing with the question of whether a mill worker was “excused from the performance of his contract, and justified in quitting when he did, by reason of the alarm and danger occasioned by the prevalence of the cholera in the vicinity of the mills…”
Photo by Edwin Hooper on UnsplashEdwin Hooper
The language of the opinion (at page 43 Me. 467) says it best:
The plaintiff was under no obligation to imperil his life by remaining at work in the vicinity of a prevailing epidemic so dangerous in its character that a man of ordinary care and prudence, in the exercise of those qualities, would have been justified in leaving by reason of it, nor does it make any difference that the men who remained there at work after the plaintiff left were healthy, and continued to be so. He could not then have had any certain knowledge of the extent of his danger. He might have been in imminent peril, or he might have been influenced by unreasonable apprehensions. He must, necessarily, have acted at his peril, under the guidance of his judgment.
The propriety of his conduct in leaving his work at that time must be determined by examining the state of facts as then existing. When the laborer has adequate cause to justify an omission to fulfill his contract, such omission cannot be regarded as his fault. Whether or not the plaintiff had such cause was a question of fact, to be determined by the jury, upon the evidence.
Ultimately, the Supreme Judicial Court of Maine upheld a jury verdict in favor of the mill worker, reasoning that “[i]f the fulfillment of the plaintiff’s contract became impossible by the act of God, the obligation to perform it was discharged. If he was prevented by sickness or similar inability he may recover for what he did, on a quantum meruit.”
Quantum meruit, in practical effect, it is an equitable claim for the reasonable value of services rendered. By way of example, quantum meruit is the type of claim that a contractor might file if the contractor does work for a home owner without a contract and then isn’t paid for the work. Sometimes only a claim of quantum meruit is filed; however, quantum meruit can also be included as an alternative basis for recovery when there is a contract. This is done so that a plaintiff has the chance to prevail even if the contract is found to be invalid or otherwise unenforceable.
So, as for the answer to the question of why you might care about force majeure: it may be that some contract you have signed shifts the risk of loss if one of the parties to the contract does is not able to perform/uphold its end of the contract due to some event such as Coronavirus (COVID-19). It might be important for you to determine:
If the contract does not specifically excuse performance as a result of an epidemic, it might include an “act of God” as a force majeure or include some other catch-all language that could be deemed to apply to an epidemic.
“Act of God” is defined by Black’s law Dictionary (8th ed. 2004) as “[a]n overwhelming, unpreventable event caused exclusively by forces of nature, such as an earthquake, flood, or tornado.” Although the definition of “act of God” is certainly very similar to the definition of force majeure, it is possible that it may be interpreted differently.
By way of some perspective, according to CNBC, as of March 3, 2020, China had already issued 4,811 so-called “force majeure certificates” to Chinese companies that had applied. These 4,811 certificates covered contracts worth $53.79 billion. Whether the force majeure claims made by Chinese companies will be successful outside of China and whether any other countries will take a similar approach remains to be seen.
