Force Majeure and the Coronavirus – The performance of contracts during a debilitating pandemic

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The coronavirus has taken the demand and supply balance of the world by a storm and continues to cripple businesses and economies that are struggling to continue in the midst of shutdowns, disruptions, supply deficits and labour shortages. In light of this, this post discusses the effect of coronavirus on contracts and contractual arrangements between parties on a national and global level. This post discusses whether affected parties can successfully invoke a force majeure event i.e. an unforeseen event that prevents a party from fulfilling a contract that would, thereby, enable them to be released from their contractual obligations or allow them more time.

Background

The first case of the COVID-19 coronavirus was reported in Pakistan two weeks ago and has since gripped the nation in a mesh of panic, fear-mongering, propaganda and confusion. The rest of the world first heard of this virus in December last year and since then it has developed into a global threat and has been declared by the World Health Organization as a public health emergency of international concern.

As a response to the news of the outbreak in Pakistan, schools and colleges in Sindh were shut down at a first instance and recently, the offices of Engro Corp, a multinational conglomerate company, situated in an expensive area in Karachi was closed for three days.

It is foreseen that the outbreak will have substantial effect, over the coming days, upon businesses, workplaces, supply and distribution channels, labour and demand. In this light, it is important to discuss the impact that the outbreak will have on contracts and the application of the force majeure clause in such contracts.

  1. Force majeure as per the laws in Pakistan

(1) Although the doctrine/term of force majeure does not have a statutory definition in Pakistan; the Islamabad High Court discussed the definitions of the same in Atlas Cables (Pvt.) Limited vs. Islamabad Electric Supply Company Limited, 2016 CLD 1833 (Islamabad). In the judgment they relied on the Advanced Law Lexicon by P. Ramantha Aiyar, 3rd ed., that explained force majeure as “events outside the control of the parties and which prevent one or both of the parties from performing their contractual obligations; A contract provision that stipulates that unforeseen events… will excuse a party from its duty to perform the contract; A contractual provision allocating the risk if performance becomes impossible or impracticable as a result of an event or effect that the parties could not have anticipated or controlled”.

The judgment further discussed the Halsbury’s Laws of England and several cases from the superior courts in India particularly Dhanrajamal Gobindram vs. Shamji Kalidas, AIR 1961 Supreme Court 1285, where it was stated that “where reference is made to “force majeure”, the intention is to save the performing party from the consequences of anything over which he has no control”. The judgment of the Islamabad High Court concluded that “force majeure refers to legal or physical prevention and not economic profitableness”.

(2) Force majeure provisions are usually standard provisions in most contracts. In such standard provisions, a list of certain force majeure events may be provided but the lists are deemed to be inclusive and recognise that there may be such events that are not specifically part of the contract but are, nevertheless, unforeseeable and unavoidable. For example, “pandemics” are usually not specifically provided for but may be covered or addressed within other force majeure events such as government order, national emergency of Acts of God.

(3) In light of the above, what constitutes a force majeure event depends on the wording of the provision. For example, if the provision provides that the force majeure event has affected the ability of a party to perform, then such party is required to demonstrate that its performance became impossible due to the force majeure event and not just that it was difficult or costly to do so. Such provisions also, usually, require that the affected party show that it took all reasonable attempts to mitigate the event and its consequences.

  1. Force majeure as per the laws of other jurisdictions

(1) English courts have consistently focused on the actual language of the provisions in contracts and have adjudicated on a case to case basis. In this regard, English courts have also found that the words in a contract, such as “prevent” or “delay” have a wider scope and force majeure may be satisfied if performance has become substantially more onerous. In this regard, the onus to prove the difficulty faced by the affected party is purely such party itself. This includes establishing that the party would have been “ready, willing and able” to perform the contract if it was not for the force majeure event. Additionally, the drafting of such provisions also includes that the affected party has taken all reasonable attempts to mitigate the event and its effects.

(2) In India, force majeure is recognised under Section 56 of the Indian Contract Act, 1872 which provides for an “”agreement to do impossible act” and gives the affected party more time to perform its obligations when events are beyond its control. In this regard, certain requisites have to be fulfilled to ensure that the event is in fact a force majeure event; these include, inter alia, that the act is beyond the control of the party, it is unforeseen and inevitable, it has rendered the contract wholly impossible, and that the suffering party exercised caution.

The superior courts in India have illustrated force majeure in different manners and on a case to case basis; some examples are as follows:

(a) In Energy Watchdog vs. Central Electricity Regulatory, Civil Appeal Nos.5399-5400 of 2016, the Supreme Court held that:

“In so far as a force majeure event occurs de hors the contract, it is dealt with by a rule of positive law under Section 56…The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view.”

(b) In Alopi Parshad & Sons Ltd. vs. Union of India, 1960 (2) SCR 793, the Supreme Court observed that:

“the [Contract] Act does not enable a party to a contract to ignore the express covenants thereof and to claim payment of consideration, for performance of the contract at rates different from the stipulated rates, on a vague plea of equity. Parties to an executable contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate, for example, a wholly abnormal rise or fall in prices which is an unexpected obstacle to execution. This does not in itself get rid of the bargain they have made.”

(3) With respect to the coronavirus being deemed to be a force majeure event in India, the Ministry of Finance vide an office memorandum on 19 February 2020 directed that all ministries treat disruptions of the supply chain due to the outbreak as a case of natural calamity and a force majeure clause may be invoked in appropriate cases.

  1. Conclusion

On 3 March 2020, the China Council for the Promotion of International Trade issued more than 4,000 force majeure certificates to companies that applied for them enabling businesses in China to invoke force majeure provisions in their contracts. This, however, may have limited applicability in such contracts that are governed by other laws, for example English laws, that require specific contractual provisions and for the affected party to prove that their ability to perform the contract was made impossible by the outbreak. In recent news, Total S.A, a French multinational integrated oil and gas company, has already rejected a force majeure notice from a liquefied natural gas buyer in China (see, https://www.cnbc.com/2020/03/06/coronavirus-impact-china-invokes-force-majeure-to-protect-businesses.html).

Therefore, nations may proceed to declare the outbreak a force majeure event but the enforceability of the particular provisions continue to be governed by the governing law in the contract which may require certain requisites to be met before an affected party is provided any relief.

Photograph credit: thesun.co.uk

_________________________________________

Myra Khan is a Bar-at-Law from the Honourable Society of Lincoln’s Inn and Ex-Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Karachi, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

 

One thought on “Force Majeure and the Coronavirus – The performance of contracts during a debilitating pandemic

  1. Pingback: Force Majeure and the Coronavirus – The performance of contracts during a debilitating pandemic | The Legal Brief

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