A customer-friendly Force majeure clause limits circumstances in which it can be invoked, but also organises what happens next: how to stay in control?
Circumstances justifying that a supplier invokes ‘force majeure’ as an excuse for (timely) performance are in a national contract law typically narrowly defined. And while justifiably invoking force majeure is somewhat rare, as a customer, litigating if the supplier had invoked it justifiably is typically undesirable, if only in view of the time court proceedings would take.
If a supplier wishes to include a force majeure clause, as customer, you will want to restrict the permitted scope as much as possible. A force majeure clause geared towards the interests of the customer is therefore restricted. It may well align with the applicable contract law and emphasise the exceptional nature in defining a ‘Force Majeure Event’.
More important for a customer, is what happens once a force majeure event occurred. In such case, a customer will likely want to:
– be informed promptly (enabling the customer to seek alternative supplies of raw materials, components and spare parts),
– stay informed about how the event of force majeure is being remedied by the supplier (and how an anticipated end date may slide if remedial attempts would fail),
– be the first among the supplier’s customers to be supplied once the circumstances causing the force majeure have been solved (or once the supplier resumes performance on other means).
A customer may even want to impose an active obligation on the supplier to provide for an interim solution for as long as regular supplies have not resumed yet.
More about force majeure clauses in Weagree’s online book.