Drafting & Litigating - Force Majeure & Frustration

Introduction

The vast majority of commercial contracts contain a force majeure clause, albeit they are often inserted without a great deal of thought in terms of their scope and application.

Arguments about non-performance due to COVID-19 have caused many businesses to re-evaluate their use of these clauses. This webinar summarises the key issues that should be covered and also considers a variety of alternative forms of wording that could be used.

Recent case law will also be discussed with a particular emphasis on cases relating to COVID-19 and cases relating to frustration.

What You Will Learn

This webinar will cover the following:

Force Majeure

• Defining force majeure events - the less detail the better?
• Causation requirement
• Foreseeability and prevention
• Mitigation obligations
• Notification requirements
• Termination - who should be allowed to terminate? Both parties or only the non-affected party?
• Braganza duty - when will this apply to a force majeure clause?
• Summary of relevant case law

Frustration

• Relationship with force majeure clauses
• Frustration by supervening illegality
• Frustration of common purpose
• Partial frustration
• Summary of relevant case law

This webinar was recorded on 4th November 2022