Force Majeure - Elements

Elements

The understanding of force majeure in French law is similar to that of international law and vis major as defined above. For a defendant to invoke force majeure in French law, the event proposed as force majeure must pass three tests:

Externality

The defendant must have nothing to do with the event's happening.

Unpredictability

If the event could be foreseen, the defendant is obligated to have prepared for it. Being unprepared for a foreseeable event leaves the defendant culpable. This standard is very strictly applied:

• CE 9 April 1962, "Chais d’Armagnac": The Conseil d'État adjudged that, since a flood had occurred 69 years before the one that caused the damage at issue, the latter flood was predictable.
• Administrative tribunal of Grenoble, 19 June 1974, "Dame Bosvy": An avalanche was judged to be predictable since another had occurred around 50 years before.

Irresistibility

The consequences of the event must have been unpreventable.

Other events that are candidates for force majeure in French law are hurricanes and earthquakes. Force majeure is a cause of relief from responsibility that is applicable throughout French law.

On the other hand, the German understanding goes under the German translation of vis major (höhere Gewalt) but seems conceptually synonymous with the common law interpretation of force majeure, comprehending both natural disasters and events such as strikes, civil unrest, and war. However, even in the event of force majeure, liability persists in the face of default by a debtor (Schuldnerverzug, cf. BGB §287 (in German)) or deprivation of property (Sachentziehung, cf. BGB §848 (in German)).

The important point here is force majeure in different legal system has different interpretations, so most of the time lawyers try to bring a definition of force majeure in their contract especially in International level. Since, in lots of legal systems force majeure can just includes act of God and Act of God contains the events such as Floods, Earthquakes, Hurricanes, ect. not civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service. The advisory point is in drafting of contract make distinction between act of God and other shape of force majeure.

Force Majeure in areas prone to natural disaster requires a definition of the magnitude of the event for which Force Majeure could be considered as such in a contract. As an example in a highly seismic area a technical definition of the amplitude of motion at the site could be established on the contract base for example on probability of occurrence studies. This parameter or parameters can later be monitored at the construction site (with a commonly agreed procedure). An earthquake could be a small shaking or damaging event. The occurrence of an earthquake does not imply the occurrence of damage or disruption. For small and moderate events it is reasonable to establish requirements for the contract processes; for large events it is not always feasible or economical to do so. Concepts such as 'damaging earthquake' in force majeure clauses does not help to clarify disruption, especially in areas where there are no other reference structures or most structures are not seismically safe.

Force majeure and cas fortuit are distinct notions in French Law.