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What is force majeure?

Force majeure is a legal concept referencing the impossibility of performance, often included as a written contract provision.  The term is of French origin, translating as "a superior force." Force Majeure, BLACK'S LAW DICTIONARY (11th ed. 2019).

In American law, the concept began under the moniker of "Act of God", with the earliest reported decisions in Maryland referencing Act of God dating to 1772.  Originally, the intent of the concept appears to have been to relieve parties from performance made impossible by natural acts or events, such as flood, storms, or death.  The legal concept has developed, though, to include broad categories of events or facts that could impede, prohibit or make performance of a contract, impossible.  Today, contractual provisions may refer to states of emergency, terrorist acts, disease, or other broad-based events.  

Force majeure is generally only as good as the contractual language that expresses the term as agreed to by the parties.  In fact, in some jurisdictions, Act of God cannot be enforced at common law and must be expressly stated in a contract to be enforceable.  Therefore, analysis of a party's rights begins with a review of the written contract governing the transactions between the parties.  Force majeure is not intended to relieve one party to a contract from the ordinary risk they assume in a contract and should not be read in that context.  Basic contract principals should apply including plain language, context and ambiguity, or lack thereof. 

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