The 'Act of God' or 'Force Majeure' is an incident in which a party to a non-performance contract is excused or frustrated by the contract, making it impossible or impractical to perform. In this article, if such a non-performing party is sued for breach of contract, we will see the legal permissibility of the same and what its repercussions are and what role would the courts play. 'Force Majeure' is an event or effect that can neither be anticipated nor controlled, as per Black's legal dictionary. It is a contractual provision allocating the risk of loss if performance becomes impossible or impractical, particularly because of an event that could not have been anticipated or controlled by the parties. The 'Force Majeure' clause, from the perspective of contracts, allows a party to fulfil its obligations under a contract upon the occurrence of a force majeure event.

The term 'Force Majeure' is not defined anywhere, but derives its reference from the Indian Contract Act, 1872, which provides that the contract becomes null and void if the contract depends on the occurrence of an event that becomes impossible. The Indian Contract Act 1872 regulates "Force majeure" (hereinafter the "Contract Act").

Where there is an explicit or implied clause in a contract stipulating 'Force Majeure' events, Chapter III on contingent contracts and, more specifically, Section 32 shall regulate it, that is, a term or condition enforceable upon the occurrence of an uncertain future event (contingent) and shall provide for its consequences.

If an event of force majeure occurs dehors the contract, a positive rule of law is dealt with in accordance with Section 56 of the Contract Act, which provides that an arrangement to do an act impossible in itself is void; and that after it has been entered into, a contract that becomes impossible or unlawful to execute due to an intervening event is void of law.

The force majeure clause-the scope and extent of this clause may vary from case to case. In general, Force Majeure is set up as a protection against non-execution of the contract due to impediments beyond the control of the parties. Accordingly, force majeure is an exception or protection against breach of contract.

Essentials of Force Majeure clause: 

• An event is an inevitable and economic difficulty can not lead to Force Majeure alone-a rise in costs or expenditure has been reported not to thwart the agreement.
• The event must be unforeseeable-by common due diligence, the event must be unable to be forecast or expected. An advance warning for an expected Force Majeure event, shall not trigger the Force Majeure clause.
• In order to qualify as an event of Force Majeure dehors the contract, events should render the fulfilment of the contract impossible-such event must completely disturb the very basis on which the parties based their agreement. A change of event or situation that hits the basis of the contract shall be deemed to be frustrated. What needs to be investigated is whether the basis of the arrangement and the object underlying it have been fully demolished by the modified situation.
• Condition precedent -Many Force Majeure clauses require that the other party be informed by a non-performing party seeking the benefit of the Force Majeure clause in the contract. These terms are precedent invocation requirements, a party may not be able to take shelter under Force Majeure if these clauses are not complied with.
• A party relying on the Force Majeure clause will take all appropriate measures to mitigate the loss caused by its non-performance. Duty to mitigate.
• The event would not have occurred due to the default of the party, but only because of the supervening event. If such an FM event does not prevent the party from performing its part, then the FM clause can not be used by such a party.

It is best left to the parties to draw up relevant provisions for Force Majeure that include events preventing them from executing contracts. Therefore, apart from typical events such as God's Act, natural calamities, etc., an increase in the number of commercial contracts containing Force Majeure clauses is very likely to cover specific circumstances such as lockdowns, epidemics, and government-enforced pandemics. If a contract includes a force majeure clause and the court finds that the provision of force majeure will apply in the facts of the case, then Section 56 of the Contract Act will not apply. The doctrine of contract frustration cannot be extended where the incident claimed to have aggravated the contract occurs out of a party’s act.

This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts that have been made to ensure the accuracy and correctness of the information published, 5thVoice.News shall not be responsible for any errors caused due to human error or otherwise.