O C C A S I O N APL A P E RN o .

2 1

by P. E. HealeyBSc BA MIOBAIQS

This paper is basedon the author's entr! lo lhe 1979 lan Mutay
Leslie Awards u/hich rras awatded the Btunze Medal i the ,oung
fiembers' competition. The ews expressedin this pqper are those of
lhe author and not necessariltlhose of the Inslhule,
 D E F I N I T I O N S

Ab initio
From the beginning.

Ejusdemgenerisrule
This rule is_that generalwords which follow two or more particularwordsmust be confined to
a
meaningof the samekind (ejusdemgeneris)asthe particularwords.
(SeePowell v Kempton park RacecourseCo.( lSgt) A.C. 143)

Obiter dicta
Therearetwo types of obiter dicta;

G) A statementof law is regardedasobiter ifit is basedupon

- factswhich either werenoi found
to exist, or if found, wete not found to be material.

O) A statementof law which,althoughbasecl on the factsfound,doesnot form the basisofthe

decision;for example,a statementoflaw in supportofa dissinting.judgerirent.

- Obiter dicta are not of binding authority but haveonly pe$uasiveauthority.

Prirnafacie
On the faceof it.
 C O N T E N T S

DEFINITIONS

I N T R OD U C T I O N

A D E F I N I T I O NO F F O R C EM A J E U R E

Act of God ... l0

Vis major ... l0

Forcemajeure ... l0

L I M I T A T I O N SO F F O R C EM A J E U R E l5

D E F I N I T I O N SO F F O R C EM A J E U R EF O R C L A U S E2 3 ( a )
O F T H E J C T S T A N D A R DF O R M O F C O N T R A C T . . . t7

A P P E N D I XI . Extract from the GeneralContract of the

Grain and SeedTrade Association l9

A P P E N D I XI I . Extract from the StandardTrade Customs

issuedby the British PaperMills 20

A P P E N D I XI I I , Extract from the Contract and Contract

Rules of the SugarAssociationof London 2l

i
FORCE MAJEURE - An examination of which circumstances are included within Clause 23(a) of the JCT
standard fonh of contract

McCardieJ in Lebeaupin v Clispin and Companlr stated;
'This phrase'force majeure has been introduced into
many English commercial contracts within recent years.
It is employed not only with increasingfrequency, but
without any attempt to define its meaningor any effort
to co-ordinate the phraseto the other provisionsdf
documents'.
Clause23(a) of the Joint Contracts Tdbunal's standard
form of building contract (1963 edition) states;
'Upon
it becomingreasonablyapparent that the progress
of the works is delayed,the Contractor shall forthwith
give wdtten notice of the causeof the delay to the
Architect, and if in the opinion of the Architect the
completion of the works is likely to be, or has been
delayedbeyond the date for completion stated in the
appendix to these Conditions or beyond any extended
time previously fixed under either this clauseor clause
33(1) (c) of these conditions, (a) by force majeure,.......
then the Architect shall as soon as he is able to estimate
the length of the delay beyond the date or time aforesaid
make in writing a fair and reasonableextension of time
for completion of the works. Provided alwaysthat the
Contractor shall use constantly his best endeavoursto
prevent delay and shall do all that may reasonablybe
required to the satisfactionof the Architect to proceed
with the works'.
INTRODUCTION
The caseo_fYrazuand Another v The Asbal Shipping
Company' appearsto be the first reported caseconcerning
force majeure.Unfortunately, no referenceis made in this
caseto the reasonfor its inclusion.
Force majeure clauseswere introduced into English
commercial contracts at the end of the nineteenth and
beginningof the twentieth centuriesand this is supported
by McCardie J in Z ebeaupinv Richard Lrispin and &mpany
'This phrase'force
majeure' has been introduced into
rpany English commercial contracts within recent years',
and bv:
(") The Grain and Feed Trade Associationwho state that
a force majeure clausehas been included in their
contracts for the last eighty yean. (SeeAppendix I)
(b) The National Federation of Building Trades Employers
who have traced its inclusion in the Joint Contracts
Tribunal's (JCT) standardform of building contract
(known then and for some time after as the Royal
Institute of British Architects form of contract)
back to 1909.
English statuteshave also included force majeureand similar
clauses,namely the Emplqyment ofwomen, Young Persons
and Childrens Act (1920)r and the Hours of Employment
(Conventions) Act 1936q.
In consideringthe reasonfor its introduction it is pertinent
to turn to lhe czseof Bhckburn Bobbin Company Limited
v T ll Allen and SonsLimitecl5 which summarisesthe
English law of contract in the early part of the twentieth
century. Parts of McCardieJ'sjudgement are as follows;
'The
original rule of English law was cleririn its
insistencethat where a party by his own contract
createsa duty or chargeupon himself he is bound to
make it good notwithstandingany accidentby
inevitable necessity,becausehe might have provided
againstit by his contract;see per curiam Paradinev
Janeb . That principle was applied with full severity
during the eighteenth century . . . . . . . . . The first
true modification of the original rule was created,I
thinl, by the doctrine of commercial frustration'.
The next true modification of the original rule was finally
effected by the decisionin Taybr v. Caldwellt . There the
contract was held dissolvedby the destruction of its-subject
matter. The doclrlne of Tayl.or v Caldwell was exletded by
Nicholl and Knight v Ashton Edridge and Company6 and
still more strikingly enlargedbv the Coronation casesof
which Krell v Henry 9 is the mo st vivid example . ln Krell v
Henry the court held that although a collateral was
important, circumstancewas the basisof the contract
between the parties, and that when the basisceasedit
followed that the contract was dissolved'.

I (1920) 1 KB114 at page719.

z 1 le 0 4 ) 2 0 T L R 1 5 3
3SchedulePt.11 Article 4 'The provision of Articles 2 and 3 (regardingprohibition of the right to work) shall not apply to
the nightwork of young personsbetween the agesof 16 and 18 years in casesof emergencieswhich could not have been
controlled or tbreseen,which are not of a periodical character,and which interfere with the normal working of the industri"al
undertaking'.
4schedule Pt.l I Article 3 'The Limitsof hours prescribedin paras2, 3 and 4 of Article 2 (ie working hours) may be exceeded
and the interval prescribedin para 5 (ie rest period) reduced,but only so far as may be necessaryto avoid seriousinterference
with the ordinary working of the undertaking.
a) In the caseof accident, actual or threatened,or in the caseof urgent work to be done to machinery or plant, or in the
caseof'force majuere',or
b) In order to make good the unforeseenabsenceof one or more membersof a shift'.
5 ( 1 9 1 8 )I K B 5 4 0
e(1647) Aleyt 26
7(1863)B&S826.
8 ( 1 9 0 1 )2 K B 1 2 6
9( 1903) 2 KB 740. The contract was to hire rooms on Pall Mall to view the Cofonation processionsof Edward V I 1. On June
20th Henry agreedin writing to pay f,75 for the hire of the rooms for two days, paying f,25 in advance.The writing did not
mention the procession.
The processiondid not take place due to the King's illness,and Henry refusedto pay the f50, and therefore, Krell took action
for this amount. The Court of Appeal held that both parties regardedthe taking place of the procession as the foundation of
the contract.
 This was the situation at the outbreak of the FiISt World
War. At this time tlGre wer€ a vast number of commercial
contractswhich contained no clauseswhat€verproviding
fcr that event. Thesewere obviously basedon the
assumptionthat peacewould continue, neither party
contemplatingwar.10
The difficulty encounteredby the courts was to decideto
which circumstancesthe exception of Krell v Henry colld
be applied;
'I
desirerespectfully to add that in my opinion the Krell
v Henry rule should not be unduly extended. It is only
in exceptional casesthat it can be safely applied'.
It is submitted that it is againstthe background of the strict
tule of Paradinev fane, with the very limited exceptionsof
the extended rule of Krell v Henry, that such clausesas
force majeurewere introduced into English commercial
contracts.Without them, the sellergenerallywould be in
breachofhis contract with the buyer.
A closerexamination of the doctrine of frustration
amplifies this situation, one in which certainty and justice
may be seento conflict.
This doctrine operatesin three main situations;
(a) Where there is superveningillegality between the
time of making and the time of completing the
contract.
(b) Wherethe performanceofthe contract has become
impossiblethrough the destruction of the subject
matter, through the death of a party in the caseof
a contract of se ice, and through temporary non-
availability.
(c) Wherelater eventsdestroy some basicassumptionon
which the parties have contracted.
The doctrine,of frustration hasrelaxed the strict common
Iaw of Paradine v Jane lhat a corLtracl is made to be
performed.
On examination of the above exceptions,it can be seenthat
there may be an overlapwith those reasonswhich may be
covercdby the concept offorce majeurc. For example,in
Denny, Mott and Dickinson Limited v Fraser (James B ) and
Co. Limitedll the contract was held to be frustrated by the
Cofltrol of Timber (No. 4) Order 1939 which made trading
in timber illegal.
In compadson, in tghtm and Staines Electricity Company
Limited v Eghem UrbanDistrict Councl12, it was held that
a Lighting Order of 1939 making the display of streetlights
unlawful was due to an unavoidablecausewithin the
meaningof the force majeureclause.
Why then are force majeureclausesintroduced into
contracts,when the occurrencemay have been coveredby
the common law doctrine of frustration? There are two
possiblereasons,
Firstly, courts are now very reluctant to hold that a
contract hasbeen frustrated13.This is supported by the
fact that sincethe passingof the law Reform (Frustrated
Contracts)Act (1943) no casesof frustrution have been
upheld by the courts.
Secondly,is the effect of a frustrating circumstance
comparedwith the effect of one reasonof force majeure.
At common law the frustrating event brings the contract to
an end forthwith, but the contract is not void ab initio.
Thus at common law, dghts accruedbefore the event remain
enforceable,but rights not yet accruedare unenforceable.
Theserules have been modified by Section 1 ofthe Irw
Reform(FruslratedConlracts)Act (1943)14.

l0Blackburn Bobbin & Co. Ltd. v T 14Allen & SonsLtcl (1918) 1 KB 540. 'But it cannot be that all such comracrs were
dissolvedby the eventsof August, 1914. The mere continuanceofpeace was not a condition of the contract. . .. . . The
destruction of a state of peaceis not of itself a destruction of any specific set of facts within D/e// v Henry rule. Nor can it be
that gravedifficulty on the part of a vendor in procurring the contract articleswill excusehim from the performanceofhis
bargain.If such were the case,then the decisionof the House of Lords in Tenants(Lancashbe)v llilnn & Company (1917)
A.C.495 with respectto the force majeure clausethere in question would have been unnecessary,for the contract would
have been dissolvedby the basic changeof circumstancesand the principle of Metropolitan llater Board v Dick Kerr and
Company(1918) A.C. 119 would haveapplied'.
11(1944) AC 265
t 2 ( r 9 4 4 )A E R 1 0 7
13(1956) AC 696. Lord Radcliffe'sjudgemett in Davis ContrsctorsLtd v Farcham UDC.
14'Sl (i) Where a contract governedby English law has becomeimpossibleof performanceor been otherwisefrustrated, and
the parties thereto have for tlnt reasonbeen dischargedfrom the further performanceof the contract, the following provisions
of this section shall, subject to the provisionsof section two of this Act, have effect in relation thereto.
Sl(ii) All sumspaid or payable to any pady in pursuanceof the contmct befoJethe time when the parties were so discharged
(in this Act referred to as 'the time of discharge')slnll, in the caseof sumsso paid, be recoverablefiom him asmoney
receivedby him for the use of the party by whom the sumswere paid, and, in the caseof sumsso payable, ceaseto be so
payable:
Provided that, if the party to whom the sumswere so paid or payableincurred expensesbefore the time of dischargein, or for
the purposeof, the performanceof the contract, the court may, if it considersit just to do so having regardto all the
circumstancesof the case,allow him to retain or, as the casemay be, recoverthe whole or any palt of the sumsso paid or
payable,not being an amount in excessof the expensesso incuned.
S1(iii) Whete any party to the contract has,by reasonof anything done by any other party thereto in, or for the purposeof,
the performanceof the contract, obtained a valuablebenefit (other than a payment of money to which the last foregoing
subsectionapplies)before the time of discharge,there shall be rqcoverablefrom him the said other party such sum (if any),
not exceedingthe value of the said benefit to the party obtaining it, as the court considersjust, having regardto all the
circumstancesof the caseand, in particular, -
(a) the amount of any expensesincurred before the time of dischargeby the benefitted party in, or for the purposeof, the
performanceof the contract, including any sumspaid or payableby him to any other party in pursuanceof the contract and
retained or recoverableby that party under the last foregoing section, and
(b) the effect, in relation to the said benefit, of the circumstancesgiving rise to the frustration of the contract.
8
 However, where the circumstanceis one of force majeure;
the resultant effect of this circumstancedependson the
wording of the contract in which it is included.
In many commercial contracts, it is both in the interestsof
the buyer and the sellerthat the contract be fulfilled, albeit
delayedby reasonof force majeurerJ.
Thus it can be seenlr that the force majeure clauseoperates
to keep the contract alive, albeit in cedain casesfor a
limited period. This may favour either the buyer or the
seller,or both.
In the caseof a building contract, it makessense
economically to keep the contract alive. For, if the delaying
occurrencewould have constituted a frustrating event and
there was no force majeure claus€,then the buyer (client)
would have to seekan altemative seller(builder) to
complete the works. This would cost him more money, and
it is likely that the delaying event would effect the new
builder in a similar way as it affected the original builder.
Thus the client would be no better off.
Alternatively, if the delaying occurrencewould not have
constituted a frustrating event, then the builder would,
without the force majeurecla[se, have been in breach of
contract by not completing on time. The client would,
therefore, have to seekdamagesagainstthe builder.
Becauseof the force majeure clause,the contmct is neither
frustratednor breached.
An extension of time should be granted coveringthe time
of the delay, but with no monies being payableto either
the client or the builder: each side,therefore, bearsits
own costs.Thus, at worst, a force majeureclauseprotects
the party who otherwisewould haYebeen in default and
therefore liable, and at best keepsthe contract alive which
may otherwise have been breached,or possibly in casesof
frustration. dissolved.
This is supported in t]necaseof FairclDugh,Dodd and lones
Limited i i. H. vantol Limitedl6 .
A DEFINITION OF FORCE MAJEURE
It Thonas Borthwick (Glasgow) Limited v Fauvre and
Fairclough Limited, per DonaldsonJ.17
'The precisemeaningof this term (that is. force majeure)
has eluded the lawyers for years. Commercialmen
have no doubt as to its meaning.Unfortunately, no two
commercialmen can be found to agreeupon the same
meaning,so perhapsin this as in so many other matters
there is very little difference between the commercial
and legal fraternity'.
A complete definition of force majeurecannot be given,
therefore, becauseof the reasonsgiven in the caseabove
and as will be shown below, it will vary accordingto the
context in which it is written.l8
Further variationsto the meaningof force majeure in
different contexts will operateby the application of the
ejusdemgenerisrule which will generallylimit its use.
Thesevariationsand limitations will be examinedlater.
What definition, therefore, can be put on force mdjeure?
To investigatethis learnedtexts and caselaw are reviewed
to determine what eventsare coveredby force majeure,
At the end, a definition will put forward, solely in the
context of clause23(a) of the JCT standardform of
building contract.
Before pursuing a definition further, three terms need
to be distinguished,these are: acts of God, vis major and
force majeure.
It will be seenthat the circumstancescoveredby the term
force majeuregenerallyinclude the other two terms;
however,acts of God and vis major may not include all
circumstancesgenerallycoveredby force majeure.
Contracts,especiallyolder ones,sometimesincluded vls
major provisions,and more frequently, acts of God clauses,
and therefore it is necessaryto distinguishbetween
circumstancesincluded by these two terms and those
coveredby the force majeureconcept.19

i5In the British Paperand Board Trade Customs,the force majeureclauseallows for suspensionof the contract. Wherethe
delay ends within one month after the stipulated delivery date, then the contract shall recommence.However, delay of longer
than one month allows either party to cancel the portion of the contract affected by delay. Thus both parties are offered
protection under this clause.(SeeAppendix II).
Clause23 of the Joint Contracts Tribunal standardform of Building Contract allows for extensionsof time to the contract
period due to reasonsof force majeure.
Clause21 ofThe Grain and Feed Trude AssociationGeneralContract No. I providesfor extensionsof time to the shipping
peiiod of one month due to the occurrenceof force majeureafter which the buyer has an option to cancel,and if he does
not take up the option, then the period is further extended by one month. If the shipment is then still prevented,then the
contract shall be consideredvoid.
It is interestingto note that although this clausefavours the seller,it givesthe buyer certain advantages.He has the option to
cancel,but more important, during the option period he can watch the market and only exercisethe option to cancelif the
mark€t goesagainsthim;for example a fall in the price in the commodity he is buying.
16(1955) I WLR 1302 Parker LI in the Court of Appeal did not define 'force majeure' but merely stated the function of it
'Whether
and when it operates; viewed as a clausewhich extends the time for shipment or as an exception clause,it is a
clausewhich operatesto prevent what otherwise might be a breach from being a breach. Such a clausewould normally, at any
rate, not be construed as being operative,unlessin its absence,the party protected would have been in breach.'
17(1968)1 Lloyd Report 16. page28.
lSBritish Electricsl snd AssociatedIndustries v Pqtle! Pressings 'For
Ltd. (1953) 1 WLR 280. example, a term of a contract
'the
usual force majeureclausesto apply'has been void for uncertainty'.
lgMatsoukis v Priestmnnand Company (1915) I KB 681 per BailhacheJ. 'A1 the sametime I cannot accept the argument
that the words (force majeure) are interchangeablewith vis major or act of God. I am not going to attempt to give any
definition of the words force majeure,but I am quite satisfiedthat I ought to give them more extensivemeaningthan act
of God or vis major. The difficulty is to say how much more extensive'.
ACT OF GOD
An act of God excusesa party under a contract frodl
liability which that party would otherltise incurred.20
HalsburysLawsdefinesact of God as;
'An extraordinary occurrenceor circumstancewhich
could not have been foreseenand which could not have
been guardedagainst,or, more accurately,as an accident
due to natural causes,directly and exclusively without
human intervention, and which could not have been
avoidedby any amount of foresight and pains and care
reasonablyto be expectedof the person sought to be
made liable for it, or who seeksto excusehimself on
the ground of it. The occurrenceneed not be unique,
nor need it be one that happensfor the first time, it is
enoughthat it is extraordinary, and suchas could not
reasonablybe anticipated, The mere fact that a
phenomenon hashappenedonce, when it does not
carry with it or import any probabilityof a recurrence
(when in other words, it does not imply any law from
which its recurrencecan be inferred) does not prevent
that phenomenon from being an act of God. It must,
however,be somethingoverwhelmingand not merely
an ordinary accidentalctcumstance and it must not
arisefrom the act of man'.
Thus, an act of God is somethingtotally beyond the powers of
of human control. It must also be somethingwhich is
extraordinary2l , outside the scopeof usual or normal
occurrences,which could not have been reasonably
foreseen,preventedor guardedagainst.22
The occurrenceneed not be the fust time.23
Examplesof occurrencesheld to be an act of God are as
follows:
a. Accident
b. Storm and tempest
c. Earthquakesand other convulsionsof nature
d. Extraordinary flood or tide
e. Lightning
f. Unprecedentedrainfall
g. Fire causedby lightning
h. Extraordinary frost
i. Extraordinary snowfall
j. Death
k. Lunacy
Examplesof occurrencesheld not to constitute an act of
God are;
a. Fog
b. Ordinary fall of snow
c. Fire not causedby lightning
d. Gnawingby rats of a hole in a pipe of a ship through
which seawater came in damagingcargo.
Vis major
The Dictionary of English Law definesvis major as'such a
force as it is practically impossibleto resist,eg a storm, an
earthquake,the acts of a largebody of men, etc. The
doctrine ofvis major is that a person is not liable for
damageif it was directly causedby vis major. Vis major
includesmany things describedasthe act of God.'
Thus, the differencebetween act of God and vis major is
that act of God is an event or accident due to natural
causes,directly and exclusivelywithout human intervention,
whereasvis major is an irresistableforce, which may or may
not be with human intervention.24
Pdma facie, therefore, there may be little distinction
betweenvis major and force majeure,
Force majeure
The first caselaw on this subject appearedat the beginning
of the 20th century.25

2lRiver WearCommissbn rt lUilliamAdamson and others. (1877) 2 AC 743 per Lord CairnsLC. 'If a duty is cast upon an
individual by common law, the act of God will excusehim from the performanceof that duty. No man is compelled to do
that which is impossible'.
2loakley I The Portsmouth and Ryde Stam Packet Co. (1856) l1 Exch.618 per Martin B.'The Act ofGod means
somethingoyerwhelmingand not merely an accidentalcircumstance'.
22Pandorfv Hay'niltor (1886) 17 QBD 670 per l,ord EsherMR'I shall not now enter into a discussionwhich at one time was
rather rife, as to what $r'asthe exact meaningof the term of'act of God'. In the older, simpler days I have myself neverhad
any doubt but thafit did not mean the act of God in the ecclesiasticaland biblical sense,accordingto which almost
everything is said to be the act of God, but that in a mercantile senseit meant an extraordinary circumstancewhich could not
be foreseen,and which could not be guardedagainst'.
The proof required regardingthe amount of protection which the personrelying on an act of God clausemust afford was seen
'I
h Nugent v Smithby Mellish.'Ll at page441; think, however,that in order to prove that the causeof the losswas irresistible,
it is not necessaryto prove that it was absolutely impossiblefor the carrier to prevent it, but that it is sufficient to prove that
by no reasonableprecaution under the circumstancescould it have been prevented.
per Cockburn C J 'In other words, all that can be required of the carrier is that he shall do all that is reasonablyand
practically possibleto insure the safety of the goods. If he usesall the known meansto which prudent and experienced
carriersordinarily have recourse,he does all that can be reasonablyrequired of him; and if, under such circumstances,he is
overpoweredby storm or other natural agency,he is within the rule which givesimmunity from the effects of such vis major
as the act of Cod'.
23Nitro-Phosphateand OclhamsChemical.ManureCo v London & St. Katherine Docks Co. (1878) 9 ChD 503 per Fry J 'I do
not think that the mere fact that a phenomenonhashappenedonce, when it does not cafiy with it or import any probability
of a recurrence: when, i6 other words, it doesnot imply any law from which its recurence can be inferred - placesthat
phenomenonout of the operation of the rule of law with regard to the act of God. In order that the phenomenon should fall
within that rule is not . . . . necessarythat it should be unique, that it should happen for the first time;it is enough that i1 is
extraordinary and such as could not reasonablybe antiiipated. . . . To say that a thing could not reasonablyhave been
anticipated iS to say that it is the act of Cod'.
24Simmons v Noitb, (1831) 7 Bing 640. In this casewhich decidedthat vis major includesact of God and Queen'senemies,
Tundall C J stated 'Here, if the surfaceof the meadow had been destroyedby the erruption of a moss,or enemieshad landed
and dug it up, that would have been no waste,but'the act ofGod, or ofa hostile force, that vis major for which the defendant
is not resoonsible'.
25Yrazusnd Anothbr v The Astal Shippr'ngCo. (1904) TLR 153.
't0
The leading case,if only that it summadsessome events
which may fall into tle conceptof forcemaieure.is
Lebeaupin v Richard Oispin and Complfljtzo where
McCardieJ'approves' the statement (rather than definition)
of Goirond2T which is as follows;
'force
majeure.This term is usedwith referenceto all
circumstancesindependent of the will of man, and which
it is not in his power to control, and such force majeure
is sufficient to justify the non execution of a contract
Thus war, inundations, epidemics,are casesof force
majeure;ithasevenbeendecidedthat a strikeof work'
men constitutesa caseof force maieure'.
McCardieJ saidof this starement28;
'This is a wide deflnition, but I think that it usefully,
though loosely suggestsnot only the phraseas used on
the Continent, but also the meaningof the phraseas
often employed in English contracts'.
There is one comment to make on Goirond's definition He
statesthat force majeure appliesto eventsindependentof
'acts of God'. However,
the will ofman- This at first suggests
he includesin his definition, wars and strikes.These
situations are certainly not independent of the will of man29,
they are man made.
Goirond's definition can be distinguished,and this is
supported by subsequentcases26,in that the term force
majeurecan be us€d with referenceto circumstances
independantto the will ofthe padies to the contract, and
which is not in their power to control,
Those cfucumstances held to be by reasonof force majeure
will now be examined.
(a) Direct legislativeor administrative interference
in Lebeaupin v Clispin,McCardie J26 gavenumerous
examplesof what he coosideredto be force majeure;
'Any direct legislativeor adminislrativeinterference
would, of course,comewithin the term;for example,
an embargo'.
A further caseregardinggovemment interference,which is
more informative, is that of C Czamikow Limited v Centrdh
'Rolimpex'30 Lord Denning examined
Handlu Zsgranicznego
two situations:
(t) Whereneither of the contracting parties was the
governmentdepartment concemed;
(ii) Wherethe defaulting pady was the govemment or
governmentdepartment,
Lord Denning held that in this case,neither of the parties
was the govemment or government department,and held
that the failure to supply the sugarwas outside the seller's
control.3o,3l
However,he stated obiter32 that if the sellerwas held to be
a department of the govemment, then it could not reply
upon the clause.
(b) Act of Parliament
One step further from govenment interferenceis legislative
effects.
In the caseof Egham and Staines Electricity Company
Limited v Egham Urban District Councilr3 there were
t}lree contractswhere the appellant company agreedto
supply electricity to the respondentcouncil for street
lighting purposes,subject to clause 15.34
Everything went smoothly until the outbreak of war, and
the Lighting (Restrictions) Order 1939, the Lighting
(Restrictions) Order (No. 2) 1939, and the Lighting
(Restrictions) Order 1940,madethe displayoflights in
t}le streetsunlawful, The respondentcouncil therefore
ceasedto consumethe greaterproportion of the current,
hitherto suppliedby the appellant and thereforce reduced
his payment.
It was held that the inability of the company to light the
lamps was due to an unavoidablecause(ie lighting orders)
within the meaningofthe force majeureclause.35

26rL920)2KB 715.
27 doniOND French commerciallaw, 2nd edition. p854.
'28Lebeaupinv Oispin. 'That learnedJudge' (ie BailhacheJ i1 Matsoukis v Priestnan)
Q92A) 2KB 715. Mccardie J stated
'was, if I may respectfully say so, clearly right when he said that the phrase'force majeure' was not interchangeablewith
'vis major' or 'the act of Cod'. It goesbeyond the latter phrases'.
2gDuncanWallace,I.N. Hudson'sbuildingcontracts.loth edition,p.359. 'Forcemajeure. . . . . it coversa wider classof events
than act of God'.
3 0 ( 1 9 7 8 )I A E R 8 1 .
31Ibid p9l.'I cannot think they should be made liable in that situation, when there was absolutely nothing they could do.
'government interyention'
They had done everything thatihe contract required them to do. It was only the ban, that is the
which preventedthe shipment. It was a clear caseof force majeure'.
32Ibid.p89.
3 3 ( 1 9 4 4 )1 A E R 1 0 7 .
34lbid. 'L,astly it is hereby agreedthat no default by the company under this agreementshall render the company liable in
damagesif and so far as such default shall ariseor be occasionedby reasonof fire, frost, accident, strikes, lockouts, a
comblnadon ofworkmen or from any other unavoidablecauseover which the company has no control. Provided always that
all paymentsunder this agreementby the council shall abate in the sameproportion as the supply shall be curtailed by reason
of any event provided for in this clause'.
35This caseis further supported by caselaw where parties to contracts not containing force majeure,or similar clauseswere
held not to be in breachwhere they have acted accordingto an Act of Parliament,enactedsubsequent10 the making of the
contract. This was so held in Baily tt de Oespign! (1869) L R 4 Q B 180; on the principle ofthe maxim'lex non cogit ad
'
impossibilia.(ie the law does not recogniseimpossiblethings). In this caseThe l-ondon, Brighton and South Coast Railway
(new lines) Ait (1862) gavea railway company power to compulsorily purchasefrom the defendant and build upon land
which the defendant covenantednot to build on. The defendant covenantorwas held not to be liable to the plaintiff
covenanteefor breach of covenant
11
(c) Breakdown of machinery
ln Matsoikis v Priestman the co.ntrcct provided for the
construction of a boat to be deliveredon or before the
28th February,1913,subjectto a forcemajeureclause.36
The construction of the boat was delayedfor severalreasons,
one of which was due.to a breakdown ofmachinery,
BailhacheJ consideredthat this camewithin the words force
majeureas force majeure cedainly coveredaccidentsto
machinery.
This begsthe question ofwhether force majeurewould
cover breakdown of machinery due to lack ofmaintenance,
that is self-inducedbreakdown, or even 'fair, wear and tea/?
It is inevitable that machinery will break down at some time
during its working life, whether it is maintained or not. As
arguedby the counselfor the plaintiff3T
'Breakdown
of machinery does not come within the
words force majeure.A breakdown ofmachinery is a
usual occurrenceand must have been taken into account
by the defendantsin consideringthe length of time they
would require for the building of the steamer'.
It seemsthat this decision of BailhacheJ must be strictly
limited to breakdownscausedby accident.Unfortunately,
the facts of the casedo not assistas they do not state the
causeof the accident which made the machinery breakdown.
(d) Accident or casualty
This is a continuation from the reasonof breakdown of
machinery through accident.
Theseevents,which would have been held to fall within
the meaningof force majeureare cited from the caseof
Yrazuand Another v The Astral Shipping Company3S
which included a force majeureclause.39
The vesselcalled in at a port becausethe master
miscalculatedthe quantity of coal which was neededto
complete the journey, thus delaying the journey and
causinga deterioration in livestock. It was held by Walton
J that an accident or casualtywould amount to force majeure.
However,running short of coal due to the master'smistake
did not amount to an accident because'the ship and cargo
were never in any actual and immediate danger',and was
nol. therefore.forcemajeure.
Walton J gavean example of accident;
'If
the deficiency of coalshad arisenfrom some accident,
if for example,it had been necessaryto jettison coals,I
think it would have been a caseof force majeure within
the meaningof the clause'.
The reasonof'casualty' was also included in Goirond's
definition40;
'....thus....
e p i d e m i c sa,r ec a u s eosf f o r c em a j e u r e . . . '
which was approvedby McCardie J in I ebeaupinv Cispin
(e) Extraordinary bad weather
In Matsoukis v Priestman, another rcason for the delay was
bad weather. BailhacheJ41 held that;
'The
term force majeure, cannot, however,in any view,
be extendedto coverbad weather. , . .
Theseare the usual incidents interrupting work, and the
defendants,in making their contract, no doubt took
them into account',
Unfortunat€ly, the facts given in the casedo not state how
bad the weather was nor what type of bad weather it was.
This distinctionwasmade by McCardieJ in Lebeaupinv
Crisoin42
'In the
Matsoukis caseBailhacheJ seemedto haveruled
that delay causedby bad weather was not within the
force majeureclause.But he was there dealingwith the
particular facts, and I conceivethat normal bad weather
is one thing, whereasabnormal tempest, storm or the
like, may be another thing and might well fall within the
force majeureclause'.
Therefore, it is consideredthat exceptionally bad weather
may fall within the words force majeure.This is also
supported by the section coveringthe act of God. In that
case,storm, tempest, an extraordinary fall of snow, and an
extraordinary frost werc all held to be acts of God. As force
majeureis deemedto be wider than act of God, such
circumstancesshould, therefore, fall within the meaning
of force majeure.
(f) Seizure of a ship
In the Turul43 upon the outbreak of war, an enemy ship
was seizedin the port of New South Wales,her charts and
papersremovedand a watchman placed on board. After
this seizure,a proclamation was made granting €nemy ships
a period in which to depart. The master of the ship was not
informed by the proclamation, or otherwise,that upon his
applying for a passthe ship would be put in a position to
ceparr.
The Privy Council held that the ship was unable to leave
'by
circumstancesbeyond its control' (force majeure)
within the meaningof article 2 of the sixth Hague
Convention.44
.!

36'If the said steameris not deliveredentirely ready to purchaserat the abovementioned time, the builders hereby agreeto
pay to the purchaserfor liquidated damages,and not by way of a penalty, the sum of fl0 sterling for each day of delay in
the deduction of the price stipulated in this contract, being exceptedonly in the caseof force majeure,and/or strikes of
workmen of the building yard where the vesselis being built, or the workshopswhere the machinery is being made, or at
the works where steel is being manufactured for the steameror any works of any sub-contractors'.
3 7 (1 9 1 5 )I K B 6 8 1 .
3 8Duncan Wallacein Hudson'sbuilding contracts, 1Oth edition.
39lbid 'The vesselhas liberty to deviatefor the purpose of savinglife or property, but not to call at aoy port or ports before
landing her livestock except in the caseof force majeure'.
40GOIROND. French commercial law. 2nd edition.
4 l ( 1 9 1 5 )1 K B 6 8 1 p 6 8 7
42(1920\ 2 KB 7 19
4 3 ( 1 9 1 9A) C 5 1 5
44'Par suite de circonstancesde force majeure,n'aurait pu quitter le port enemi pendant le de lai vise a l'article precedent'
(i.e. whether the ship becauseof reasonsof force majeurecould not have left the enemy port dudng the period mentioned in
the precedingarticle).
 'Thus
(g) General dislocafion of the supplier's qusiness war., - . . are casesofforce majeure'
The main reasonfoi:the delay in the caseMatsoukis v (i) Strikes
Preistman was l]r.e1912 universalcoal stdke. The works Again, Goirond's definition50 of force majeureapproved
where the defendant obtained its materialsfor other ships by McCardieJ in Z ebe(rupinv Oispinsr, included strikes
it was building fell behind. As a result, the ship to be built asa reasonl
'. . . . . it has evenbeen decidedthat a strike of workmen
before the plaintiffs occupied the berth that was intended
to be occupied by the plaintiffs drip much longer than it constitutesa caseof force majeure'.
otherwise would have done, and consequently,the plaintiffs It washeld, it Hackney Borough Codncil v DoreS2 that a
boat was late in being laid down, and th€refore late in strike would, if the circumstancesallowed (ie there were not
delivery. constraintssuch as the ejusdemgenerisdoctrine), amount to
BailhacheJ4s held that this delay did fall within the force rnajeure,but that reasonableapprehensionof a strike
reasonablemeaning of force majeure. did not amount, in itself, to force majeure.53
(h) War There are severalevenisheld by the courts not to fall under
Many commercial contracts today contain their own the words of force majeure.Theseare as follows:
provision againstthe outbreak of war, However, one casein (r) Events which are within the confol of the party
which a force majeureclausewas included but a war relying on force majeure.
provisiondid nol exist wasin Zinc Corporotionv Hirsch46 ln Hong-Guan and Company Limitecl v R lumabhoy
War broke out, and the sellerclaimed suspensionof the qnd SonsLimited Der[,ord Morrisof Borth-v-Cesl54
'So far
contract. as the clausedealswith forcemaj6ureit
On the question of whether the force majeure clause17 appearsto be designedto protect the respondents
included war, per Swifen Eady L J47; from liability in the event of their being prevented
'The term force majeureas used on the Continent of from performing the contract by circumstances
Europe includeswar; Calvo Dictionnaire de Droit beyond their control'.
International, force majeure; Dalloz Juispuidence (ii) Thos€ events which are common or usual events which
'force can be expectedto occur in industry
Generale,tome 24 page755 article majeure'
Goirond's French Commerciallaw, 2nd edition page Such circumstancesas employeesattending the
834. Whether the expressionhas the samemeaningin funeral of their shipyard manager,and employees
this contract is another matter. but war is a cause attending football matcheswere held not to be by
beyond the control of either party preventing or reasonof force majeute tr Matsoukis v Priestnan
delaying the carrying out of the agreement'. becauseas stated by BailhacheJ.
'These
It is considered,therefore, that war, unlessexpressly are usual incidents interrupting work, and
excluded or included for elsewherein the contract, would be the defendants,in making their contract, no
coveredby the words force majeure.This is endorsedby doubt took them into account'.
Goirond's48 definition approvedby McCardieJ in
Lebequpin v Crispin49
45 :It was not, however, the direct operation ofthis st ke which causedthe damage.What did causethe damagewas the
generaldislocation of the defendant'sbusinessand the businessof the manufacturersof steel plates,etc. in the north, and in
those cfucumstances, I think I amjustified in sayingthat did constitute a caseof force majeure.Of course,if I were to give the
words the full meaning attributed to them by the Belgianlawyer there would be no doubt about the matter, but giving them
a more restricted meaning I think that the complete dislocation of businessin the north of England as a consequenceof the
universalcoal strike, which operated directly on the ship in turn for building previously to the plaintiffs steamer,and only
indirectly on the plaintiffs steamer,did come within the reasonablemeaningof the words force majeure'.
46(1916) 1 KB 541 Clausel7 of the contract provided 'In the event of (inter alia) any sttike, suspensionof labour, floods,
fire, stoppageof water supply, act of God, force majeure,ot any causebeyond the control of either the selleror the buyer
preventingor delaying the carrying out of the contract 'then this agreementshall be suspendedduring the continuanceof any
and every such disability.
47(1e16)l KB 541 p554
a8 GOIROND. French commerciallaw. 2nd edition.
4e( 192012 KB 7 t9
I so'GOIROND.Frenchcommerciallaw. 2nd edition.
sr( 1920\ 2 KB 7 19
52(1922)1 KB 431
53Under the Hackaey Electric Lighting Order (1893), the council were bound to give a supply of energyto premisesin their
'Wheneverthe undertakersmake default in supplying energyto any owner or
district, subject to clause26 which provided;
occupier of premisesto whom tiey may be and are required to supply energyunder this Order they shall be liable to a penalty
not &ceeding forty shillingsin respectof every such default for each day on which any such default occurs . . . provided . . .
that in no cale shail any penalty b; inflicted in respectof any default if the court . . . shall be of opinion that such default
was causedby inevitable accident or force majeure . . .'
Two of the iouncil's workmen refusedto do the work required, becausethe wiring of Dore's househad been carried out by
a man who was not a member of a trade union; that if the council had dismissedthesemen the result would probably have
been that the Electrical TradesUnion would have causedall their membersin the council's serviceto terminate their
engag€ments; that if this had occurred it would have been difficult for the council to get other competent workmen; and that
any interferencewith the council's undertaking by the withdrawal of their workmen would have seriouslyaffected the whole
district. The council contended that they were not liable for the penalty under clause26, as any default on their part was
causedby circumstancesamounting to force majeure.
At the fiist hearing the Magistrateheld that the meaningof force majeureapplied only to physical or material constraint and
that although it had been held that the expr€ssionapplied to stdkes actually proceeding,to war, and to breakdown of
machinery, it had never been held to apply to fear, however reasonable,of the oonsequences of threalened actioo.
5a(1960)AC 684 p690 (Privy Council)

t\t

(iii) Events which the parties are, or should be aware of
Drior to. or at the time of making the contract
inlohn Batt and Company (I'Qndon) Limited v
Brooker, Dore and Company Limited, per Atkinson
J55;
' could, therefore, have been exported'.
. . . . it seemsto me perfectly plain that the
clause(ie foice majeure) did apply and that
performancewas quite impossiblefrom causes
over which the sellerhad no control, and I can
seeno justification whatsoever,for the
suggestionthat they cannot rely upon these
causesbecausethey ought to have anticipated
them and foreseenthem'.
Atkinson J, however, said that he would have taken
the opposite view if there was evidencethat the
seller ought to have anticipated the incidents.
However,this may be limited by the strict words
of the contract,
Prima facie, eventswhich the party is, or should
be aware at the time of contract cannot be pleaded
as force majeure.However, if as in Readon Smith
Line v Minister of Agriculture16 , it car, be shown
that both parties were aware of the fact, and the
intention was that the event could be relied upon
as falling within the meaningof force majewe,
then it shall so be.
(iv) Price increase
Al increasein price of the commodity being sold,
o r i n t h e m e t h o do f t r a n s p o r t a t i oonr a n y o t h e r
associatedincreasewill not come within the
meaningof force majeure'
The reasonfor this is that the contract is still
capableof being performed albeit at a higher pice
to the seller.
In the caseof Tenants(Lancashire) Limited v C' S.
llilson and CompanyS?I-ord loreburn held58;
'By hindering delivery is meant interposing
obstacleswhich it would be really difficult
to overcome.I do not considerthat even a
great rise of prices hinders delivery. If that had
been intended different languagewould have
been used, and I cannot regard shortageof cash
or inability to buy al a remunerative price asa
contingency beyond the sellerscontrol' The
argumentthat a man becomesexcusedfrom
performanceof his contract when it becomes
'commercially' impossible . , . . seemsto be a
dangerouscontention, which ought not be
admitted unlessthe parties have plainly
contractedlo I hal efl'ect"
This is also the implication from the caseof Bunten
and Lancaster Limited v Wiltshire Quality hoducts'9
Limited 59 dnd Brauer and Compsny v James Clark pet
SellersJ6o
'. . . the sellersadmitted . . . that they could have
shipped,declaredand tendered the contract
ss(1942)LloydsList L R Vol 72, 149,p157
s6(t962)2 AER577
s1(1917)AC 49s
5 8 I b i dp 5 1 0
se(1951)2 LloydsRcp30
60(19s2)2 AER 497
611-'This contractis subjectto the usualforcemajeureclauses of this countryandof the countryof originof the goods.
2. Notwithstanding sellers
anithing aheadystatedin this contract reseruethe right to delaydeliveryor shipmentand/br
cancelwithout claim on eithersidethi unshippedand/or undelivered portion of this contractin the eventof their seller,
failingto shipor deliveron accountof stdke;,civil commotions, war, civil war,failureof crops,forcemajeureetc,,and/or
contdbutorycauses.
62(1951) 2 LoydsRep32
63(1922)1.KB 431 p438
14
goodswithin the contractual date if they
(themselves)had paid the minimum price. On
this admission,the sellerscannot, in my opinion,
rely on force majeure. There is no prohibition,
no physical or legal prevention. The goods
(vi) Failure of the subject matter when other suppliers
are available
ln Bunten and Ldncsster v Wilts Quality hoducts
Limited, the sellerfailed to supply kerasund
hazelnut kernels as contracted for, The contract
c contained a force majeureclause.61
The sellerclaimed tlnt he was entitled to cancel
the contract by reasonof force majeure, because
the annual crop produced was approximately one
third below the averageannual production, which
resulted in a price increase.
It washeld per McNair J62;
'It quite
is clear on the evidencethat there was
not the slightestdifficulty for any buyer in the
autumn of 1950 (at the material time of deliyery
under this contract) to buy goods of the contract
description provided he was preparedto pay the
market price for them. There is nothing to
suggestto me that there is anything abnormal
in the market fluctuations that took place in this
case.I therefore am quite unable to infer that
the sellers'reasonfor failing to deliver was failure
of crop, or force majeure, or any matter of that
kind'.
The circumstancesexaminedabove illustratethose events
which the courts have beemedforce majeure clausesto
cover, and also those which do not constitute force majeure.
Two overriding facton may be addedto this;
Firstly, although one or other of the aboveeventsmay
occur, it doesnot necessarilymean that the force majeure
provision will operate.For example,it may be possibleto
fulfill the contractual obligationsin someother way, despite
the fact that the event has occuned. In other words, in order
for such a plea to be successful,tlte contract must be
impossibleto carry out due to this event.
This was highlighte d in Hackney Borough Council v Dorc
per BransonJ63
'In
my view force majeure cannot be establishedby
showingthat the consequencesof doing the act which
would be suffered by the person dying upon the
clausewould be unpleasant,tuoublesomeor perhaps
disastrous.In order to succeed,the appellantsmust
show that what the statute ordered them to do has
becomeimpossible;it is not enough for them to s4v
that it has become inconvenientor unpleasantfor them
to do it'.
The secondfactor leadsdirectly from the first, namely that
the party relying on the clausemust do all that is reasonably
possibleto prevent the delay from occurdng.
 This is establishedin the caseconcerningact of God, namely
Nugent v Smith64 .
There is one miscellaneouspoint regardingcontracts
including a force majeureclausewhich is of interest.
A force majeureclause,on its proper construction may allow
the court to take account of the promisor's obligations
under other contracts despitethe fact that, as a rule, it is
no excusethat contacts with third parties prevent the
fulfilment of the contract in question.
This was so held in Pool Shipping Company Limited v
Lond.on Coal Cornpany of Gibraltar Limited6S , where
there was a contract for the supply of steamercoal subject
to;
'In the
event of any causeof circumstancebeyond the
control of the sellen and/or suppliersof whatever
description . . . which preventsthe supply, shipment,
carriageor delivery of all , . . . coal herein contracted
for . . ., or the normal working of this contract, sellersor
suppliersshall be entitled to relief from all obligation
under this contract,
It was held that in construing the phrase'normal working
of the contract', the court was entitled to look beyond the
buyer and sellerand considerthe seller'scommitments
under contract with other buyers, and in the circumstances,
the normal working of the contract was prevented.
In this caseit was held that the defendantswere entitled,
provided the shortagewas due to causesbeyond their
control, to equalisethe shortageof delivery among all their
contracts.This is what is called the 'normal working of the
contract', and in the circumstancesof the case.this normal
way of carrying out the contract is held to be the couect
method, and one which the defendantswere entitled to
adopt.
It is interesting to note that in the United Statesof America
52-615of the UniversalCommercialcode imposeson the
sellerthe duty to allocate his output amonghis purchasers
in such a manner as he may determine to be'fair and
reasonable'.
LIMITATIONS OF FORCE MAJEURX
A further three possiblelimitations additional to those
mentioned in the previoussection will be discussed,namely:
(a) Ejusdem generis rule
In many commercial standardform contracts circumstances
which are deemedto be force majeureunder that contract
are often stated.
Where this is the case,then ary generalwords or other
nonstated circumstanceswhich are claimed to constitute
force majeurewill be read, ejusdemgeneriswith the
circumstanceswhich are stated.66
(b) Force majeure held void for uncertainty
The caseof British Electrical (Cardiff) Limited v Patlq)
LYessings Limited61 is one widely cited58 to illustrate that
a term'the usual force majeure clausesto apply' is void for
uncertainty,
It is consideredthat this may be too liberal an interpretation
of the decisionin the case.The terms of the contract in
relation to the saleof steel contained the following clause;
'Subject
to force majeureconditions that the lovernment
restricts the export of the material at the time of delivery'.
At the time of the contract, there was a variety of force
majeureconditions in the trade, but there was not evidence
that any particular oneshad been agreedupon.
The plaintiff brought an action againstthe defendant for
repudiation of an agreementto sell steel.The defendant
allegedthat the force majeureclausestated above was so
uncertain as to render the contract unenforceable,since
there was in the trade, vadous force majeureclausesand
no agreementhad been reachedbetween the parties as to
which of such consitions should apply.

r 6c(1876) 1 CPD423
6s(1939) 2 AEF.432
66M4tsoukk v hiestmqn. (1915) 1 KB 681. The exception clausegavean exception as force majeure,and the other as '. . . .
strikes_ of workmen of the building yard where the vesselis being built, or the workshopswhere the machinery is being made,
or at the works where steel is being manufactured for the steamer,or any works of the sub-contractor'.
One of the causesof delay was the coal strike, which delayedthe mamufactureof materials,thus delaying the construction of
the boat being built in the berth which the plaintiffs boat would occupy.
Per BailhacheJ at pages686, 687; 'If it (ie the detention of the berths;f the previousbaot) had been the direct result of the
coal strike, there would have been great difficulty in sayingthat ihe casecami within the exception clause,seeingthat certain
strikes are there particularly mentioned. It would have been difficult to hold that another strike operatins directlv uDon this
ship ought ro be addedto the specificstrikesmentionedin the clause'.
In the Concadora(1916) 2 AC 1994 202, per l-ord Parmoor; 'I take it that a force majeure clauseshould be construed in
each casewith a closeattention to the words which precedeor follow it, and with a due regardto the nature and general
terms of the contract. The effect of the clausemay vary with each instrument,.
In Re An Arbitration Between the Podair Trading Company Limited; Bombay and FrancoisTagher, (1949) 2 KB 27j & 281,
per Lord Goddard C J. 'In rule 53 force majeureis used in referenceto 'timely fulfilment' of thi coniract and I should have
thought that force majeure in that connection must be construed as being ejusdemgeneriswith the causesof delay previously
mentioned'.
I-ord Goddardcontinued;at page286;'. . . and in our opinion the expressionforce majeuremust alsobe construedwith
regardto the-wordswhich precedeor succeedit'.
Finally , in Fenwich and Schrnalz(1868) L R 3C p316, the contract provided for the defendant to load the plaintiffs ship
with coal in regularand customarytum. 'exceptin the crseof riots,itrikes,or any other accidentsbeyonclhis control' which
might pre,ventor delay the loading. The defendant pleadedthat a snowstorm previnted loading.
Held per Willes J; 'Wasthe snowstorm,however, 'an accident beyond the conirol' of the defen-dant,No doubt it was beyond
his control but was it an accident, I think not, becausean accident is not the sameas an occurrence,but is somethingthat
happensout of the ordinary courseof things. A fall of snow is one of the ordinary operationsof nature, and is an incident
rather than an accident, and therefore, without going into the rule that the generalwords are to be restricted to the same
genusas the specificwords which precedethem, I think this natural occuffence did not come within the terms of the exception
in the charter-party'.
6 7 ( 1 9 s 3 )l W L R 2 8 0
68Halsbury's lawsof England,Volume 9. 3rd edition p322, lootnote 6: Benjamin Saleof Goods-- page663, footnote 39.
'15

The court dgcided on two counts;
(i) M'cNairJ held69 that the words contained in the
clausepreventedthe court frcm holding that any
enforceablecontract was made. He held that the
'in the force majeure clause'made the
words
sentenceso vagueand uncertain to be capableof
any precisemeaning.To
(ii) In the secondplace McNair J71 consideredthat the
'condition' in force majeure conditions means
word
'stipulations' or 'clauses'and not 'contingencies'or
'circumstances'.
Therefore,as there was in the trade a vadety of'force
maieureconditions', and therefore fell within the line
of iuthorities of such casesasBishop and Boxter Limited v
Anglo Eastem Trading and Industrial Company Limited12,
'subject to warplause' was held by the
where an agreement
Court of Appeal to be not a completed agreementasthe
war clausetook many forms, and as there was no evidence
that the parties had any particular form of clausein mind,
there was no consensusad idem and therefore no completed
confiact. 1a
-
J considered
It is interesting to note however, that McNair'contingencies'
'conditions' meant eitler
that had the word
or 'circumstances' that the words/phrasemay not have been
too vagueto be of contraciual effect. Nor did McNair J
accept that the further submissionby the defendantsthat
the phrusewas too vaguein the sensethat it did not state
the legal consequenceswhich would follow on proof of
force majeure,ie whether there should be cancellationor
dissolution.
Thus, it appearsfrom this judgement that the following
three clausesare too vague,and therefore, not binding;
Subjectto force majeureconditions;
Subject to force majeure stipulations;
Subject to force majeureclauses;
unlessthose conditions, stipulations ol clausescan be
ascertained,becauseas McNair J states;?4
'. . , , no consensusad idem will be held to exist where
there still remainsto be negotiatedand agreedthe exact
form of the clausesor conditions refered to by the
parties'.
However,the following clausesare not too vagueand are
therefore binding;
Subject to force majeurecontingencies;
Subject to force majeurecircumstances;and in addition
McNair J statesTsl
'I
am quite satisfiedthat an agreementfor salewhich
'subject
was otherwisepreciseand contained the phrase
to force majeure' would be a valid and enforceable
contract'.
This begsthe question.therefore.of *re definition of force
majeure,
As discussedabove?6, there is no legally acceptable
'subject
definition of force majeure.Therefore, if a clause
to force majeure' is incorporated into a contract, then
unlessthis is defined therein, or unlessthe circumstancein
which force majeurearisesis stipulated, then parties do not
know what the clauseintends exactly to cover;albeit they
have a generalknowledgeperhapsfrom decidedcasesand
the possibleintention from the particular contract.
Does this mean, therefore, that unlessthere is an acceptable
definition of force majeurethen there will be no consensus
ad idem between the parties?
It is submitted tlat this is too generala mealing to derive
from the decisionin this case,and that this must be put
into the context of the case.
The overriding factor in this caseis that there were several
'conditions' in use in the trade at the time of
force majeure
the contract. The fact that this contract did not stipulate or
imply which of these conditions was to be included meant
that the whole of the contract was too vaguebecausethere
was no consensusad idem.
Again, it can be seenthat the interpretation of the force
majeureclausefalls back onto the context in which it is
wdtten. The dangerof interpretation lies where it is removed
from tlis context,TT

6 e ( 1 9 s 3 )1 W L R3 2 8 3
7OG.
Scsmmell and Nephew Limited v Ouston. (1941) AC 241. McNair J in order to support his decisionquoted this case"at
p255. 'In order to constitute a valid contract the parties must so expressthemselvesthat their meaning can be determined
with a reasonabledegreeof certainty'.
71Ibid p2 83
72n944\ KB t2
73(19s3)1 WRL 283 p285.
74(19s3)1 WLR 283 p284
rslbid p285
't6Thomas
Borthwick (Glaaow) Ltd. v Fauvre snd Fairclough Ltd- (1968) 1 Lloyds Rep 16 p28. Per DonaldsonJ
??This casecan be contrastedwith Nicalene Limited v Simmonds, (1953) 1 AER 822; where there was a contract between 'As
the sellerand the buyer. The buyer in a l€tter offered to buy specificgoods from the seller..Thesellerreplied in writing;
you have made the order direct to me, I am unable to confirm on my usual printed form which would have the usual force
majeureand war clauses,tlut I assumethat we are in agreementthat the usual conditions of acceptanceapply'.
'in
It was held by Denning L J; at page 826; the casebifore the court there was nothing yet to be agreed.There was nothing
'the usual conditions of acceptanceapply'. That clausewas so vague
letl to furthei negotiate. The parties merely agreed that
and uncertain asio be incapableof any precisemeaning.It is clearly severablefrom the rest of the contract, and can be
rejectedwithout impairing the senseof reasonableness of the contract as a whole, and it should be so rejected'.
Tire difficulty, therJfore, which arisesbetweenthe two cases,is when will a'vague' clausebe severablefrom the main contract,
and when will such a term make the contract void for uncertainty.
cases'
This is a question outside the scopeof this paper, and one which the courts must answerfaced v/ith individual

16
 (c) Self inducement
The courts have firr y held that any self-inducedact,
omissionor default on the part of the party seekingto be
excusedwill most certainly not fall into those eyents
coveredby force majeure.?8
DEFINITION OF FORCE MAJEURE FOR CLAUSE 23(a)
OF THE JCT STANDARD FORM OF CONTRACT
No exhaustivedefinition can be given to the concept of
force majeure asit differs, dependingon the facts of
individual cases.
The statement of Lord Denning in Stelmson, Jordan and
Hsrrison Limited v McDonald and Evans79 regarding the
definition of a contract of servicein employment law
could usefully apply to the definition of force majeure;
'Wasthe
contract a contract of servicewithin the
meaningwhich an ordinary personwould give under
the words . . . . it is alrnost impossibleto give a precise
definition of the disrinction.lt is often easyto recognise
a contractof sewicewhen you seeir but difficult tJ
say wherein the difference lies'.
It is easierto identi$/ a cfcumstance falling within the
meaningof force majeurethan to define it.
Unfortunately, the term force majeurehas not received
judical interpretation in a caseconceming a building
conIIact.
Therefore,the other judgementsin commercial casesmust
be used to provide an acceptabledefinition. This is best
done by meansof a check list, as follows;
(a) The circumstancesfalling within the concept must be
independent of the will of the contracting parties;
(Lebeaupin v Oispin)8O
(b) The circumstancesmust be outside the control of the
party relying on the force majeure clause;' (Hong
Guan & Co. Ltcl. v R. Jumabhoy and SonsLimitedSl
the ConcacloroS2)
(c) The circumstanceswill not include those which are
common or can be expectedto occur in industry
(Mqtsoukh v t iestman)83.
(d) The circumslances wiil nor includeftrosewhich the
contncting parties are awareor should be awareat
the time of making the conl1lact,(Iohn Batt and Co.
(London ) Limited v Brooker, Dore and Comryn1t
)s4 ,
unlessthe intention by the parties at the time of
contracting was that these should be includedl
(ReardotSmith Line v Minister of Agiculture, Farms
and Fisheries)85
(e) Circumstanceswhich are self-inducedby the party
relying on the clausewill not amount to forci majeure,
(Simons v NortonS6, Lebaupin v Oispin)B'l
.^
(0 The circumstanceswhich are claimed io constitute
force majeuremust make the contract impossible.
and not merely more difficult or more expensiveio
catry out (llalton v British Italian Trading Co.8B,
Hackney Borough Council v Dore )89
.
G) The party relying on the force maieureclausemust do
all rhat is reasonably possibleto pievenrrhe delay
ftom occwring; (Nugent v Smith)90
Having establishedthe geneml criteria which must exist to
prove force majeureunder clause23(a), it is necessaryto
examinethose specific circumstanceswhich do, or wlich
do not. fall into the definition in the clause.
Clause23 includesother groundsfor which air extensionof
time would be granted by the architect, which if thev were
nor separatelystatedmay fall under the cjause23{aisub-
clause.Theseare:
(t Clause23(b) exceptionally inclement weather;
(Matsoukis v biestmqn;83 Dixon v Metropolitan
Board of l4orks;91Blyth v Birmingham Warcrworks
Co.e2 Briddon v Grcat North Railway Companyg3l
(ii) Clause23(c) - loss or damageoccasionedby any oi
the contingenciesrefeued to in clause20(A), (ti) or
(C); (Keighley's ssss94; l{ugent v gmith)90
. -
(iii) Clause23 (d) - civil commotion. local combination
of workmen, strike or lockout, etci (Lebequpin v
Crispin9S; Hackney Borough Council v Dori)89.

?8Ia the^nineteenth
century case-ofSln mons v Norton, (1831) 7 Bing 640 at page649; Tindall C J Speakingof vis nEjor;
'It
is sufficient, however, to say that the generalissueapplies only to iases wherJ the act complainedof is not the
act of
the party;if it be the act of the party, he must admit and justify it on record . . . .'
In Lebeaupin v Oispin per McCatdie J (1920) 2I(B 714 & 721;' Aman cannot rely on his own act, or negligence
or omission
or default asforce majeure'.
This was alsoheld in the caseof Ne\e Zealtnd Shipping v SocietedesArteliers, (1919) AClat 6;per Lord Finlay
L C. .it is a
.pdnciple of law that no one in such a casetakes advantageof the existenceof a state of things which he himseif produced . . .,
And per Lord Atkinson, at page9; 'The application to contracts such as theseof the principie that
a man shall not be
pemitted to take advantageofhis own wrong, thus necessarilyleavesto the blamelesspuri
un option *frether he will ar
will not insist on the stipulation that the contract shall be voii on the happeningof the named
eu'"nt.io o"priv" t im of that
option would be but to effectuate the purpose of the blameableparty'.
The same approachto self inducement has been followed by theiouits regardingthe doctrine
of frustration.
rtr Maitime National Fish Limited v ocean rluwlers Limitia,lozsl lciz+;Iird wright said; .The essenceof .frustration'
is that it should not be due to the act or election of the oartv'.
Therefore,it can be seenthat the common law approachis t-hesameas tiat adopted in force
majeurecases,which is summed
up in Goirond's definition, (French commercial law 2nd edition, p854) where
ie statesthat irrl ,"r- i"r". r"",.ure is a term
used with referenceto all circumstances. . . . ,not within his (man,i) power to control'.
7e.(1953)1 TLR 101 8s (1959) | I_{'yds223
80(1920)2K8716 Bs es22) | KB 431
81(1960)AC 684 e0(1876iI KB s3l
8 2( 1 9 1 6 ) 2A C r 9 9 e r ( 1 8 8 17)
8 3( 1 9 1 5 )1 K B 6 8 1 QBD4I8
e 2( 1 8 5 6 )l l E x c h7 8 1
84(1942)LloydsList LR Vol. 72. 149
e3(1858)28 LJE' 5l
8s(1962)1 QB 42
86(1931)7 Bins640 e4 (1609)10Co Rep 139
87(1920)2KB 716

17
(iv) Clause23 (i -by the contractor's inability to secure
such labour, goods and/or materialsas are essentialto
carry out the work s. (Matsoukis v fuiestrnenS3)
Thesecircumstanceswill not constitute force majeureunder
clause23(a). Thus, if one of the above sub-clauseswas
deleted from the contract (ie the contract specifically
allows for the deletion of all or part of sub-clause23 O;
then the intention of the contracting parties must be that
thesecircumstancesshall not give rise to an extension of
time.
Therefore, if one or more of the sub-clauses is struck out,
this will not constitute a reason by force majeure under
clause23(a).
This is becauseof the application of the ejusdemgenerisrule
as discussedpreviously.
As stated btl-ord Parmoor in the Concadoro96;
'I take it that a force majeure Clauseshould be construed
in each casewith a closeattention to the words which
precedeor follow it, and with a due regardto the nature
and generalterms of the contmct".
And in Mottram Consultants v Benard Sunley and Sons
Limited per *t4 6ros9?; (a casenot concernedwith the
force majeureprovisions)
'Wherethe parties use a pdnted form and delete pafis of
it one can, in my opinion pay regard to what has been
deleted aspart of the surrounding circumstancesin the
light ofwhich one must construe what they have chosen
to leavein'.
Therefore as stated above,by striking out one of the sub-
clausesfrom the contract, it must be the intention of the
contracting parties that the circumstancesincluded under
the sub-clauseshall not constitute a ground for an extension
of time under clause23, and will not, therefore, fall under
force majeure sub-clause23(a).
This was the guidancegiven by the Royal Institution of
Chartered Surveyors(Quantity SurveyorsPracticeand
ManagementCommittee) where delayswere causedto
building contracts by the 1973174erctgy crisis. Statutory
restrictions on the use of fuel and power causingdelaysor
shortagesto suppliesof goods and materialsin contracts
where clause23O (ii) was deleted.98
Finally, sub-clause23(d) coversdelaysby civil commotion,
strikes etc., in specificcircumstances.Situations may well
arisewhere a delay may be causedby civil commotion,
strikes etc., which do not fall into the specific
clrcumstances.
Therefore,will thesegroundsfall under clause23(a) force
majeure?
There are t]vo possibleapproachesto th.isquestion;
Firstly, it may be arguedthat the force majeure clause23(a)
is a''fall back' clause.That is to say that clause23(a) is to
be read together with, and not independently of the
following sub-clauses.
q s ( 1 9 2 0 )2 K B 7 1 6
e6 (1916) 2 AC r99
e7 (L974) 2BI-R3
gSEnergyCrisis.Statutory restrictions on the use of fuel and power. CharteredSurveyor 1914 April, p267
I Mastrandrea,F. An example - force majeure' QS Weekly 1977 September'p4'
100(1915) I KB 681. pp686-68?.'Wasthe detentionof the berthsin thosecircumstances
been the direct result of the coal strike there woulC have been great difficulty in saying that the casecamewithin the
exceptionsclause,seeingthat certain strikes are there particularly mentioned. It would have been difficult to hold that
another strike operating directly upon this ship ought to be added to the specific strikes mentioned in this clause'.
101(1968) 1 Lloyds Rep 16.
18
Thesesub-clauses, therefore, would be by example of
occurrencescoveredby the clause23(a), although standing
in their own right when used as a rcasonfor granting
extensionsof time.
Therefore, if an occurrencedoes not fall directly under
clause23(b), (c), (d) or O, then it is not necessadly
precludedfrom revertingto clause23(a).
h'or example, strikeswhich do not fall under caluse23(d)
may fall within the meaningof force majeureunder clause
23(a). This is supported by Mastrandrea.99
Secondly,it can be arguedthat the intention of the parties
at the time of contracting must have been only to have
included delays due to the strikes stated in clause23(d),
otherwise clause23(d) would not have been included, and
strikes,etc., would have fal1enunder clause23(a) - force
maieure.
Thii was implied, albeit obiter dicta by BailhacheJ in
Matsoukis t-Priestmar100.However,in that samecase,the
court held that the delay was not the direct result of the
coal stdke, but that the strike affected the production of
materialsby a supplier of the defendant,which delayed
the defendant in completing the ship b€ing constructed
pdor to the plaintiffs shiP.
ihis therefoie,generatlydislocatedlhe defendanr's business'
was
which was due indirectly to the coal stdke, and
therefore coveredby the force majeureclause'Thus, it
deDends Durelvon the [actsofthe casewhelherslrikes.
civil commotion,etc., not coveredby clause23(d)will fall
under23(a).
There appear,therefore, to be very few circumstances
coveredby clause23(a). Such would include, war,
sovernment/administrativeintervention, Act of Parliament
iccident or casualty(eg epidemics)and possibly strikes,
lockouts. etc., not directly affecting the works'
However,as l-ord Denning said abovewhen referring to
contractsof se ice, it is easierto recognisea circumstance
of force majeurewhen you seeit than to give a preclse
definition.
One final requirement of clause23 is thaU
'Upon it 6ecoming reasonablyapparentthat the progress
ofihe works is deiayed,the contractor shal forthwith
give written notice of the causeof the delay to the
architect....'
Therefore,if the contractor fails to comply with this time
limit, his dght to an extension of time will be lost' This was
iiifri"a'n rno*as Borthwick v Fauvte and Faircloughlor
where clause19 provided that notice of the likely delay due
to
'force majeuri' must be given by the shippersto their
^-
buyers within 7 days of the occufience,or not lessthan 21
days before the commencementof the contract period,
whicheverwasthe later.
This procedurewas not followed by the shipper, and had
the delay been held to be a circumstancecoveredby force
maieure.then the sellerwould have been preventedfrom
relying on clause 19 for failure to comply with this
requlremenr.
a caseof forcemajeure.If it had
 APPENDIXI
EXTRACTFROMTHE GENERALCONTRACTOF THE GRAIN AND FEEDTRADE ASSOCIATION

PROHIBITION-I0 case of prohibition of export, blockade or hostilities or in case of any executive or legislative act done by o! on behalf of the
governmetrt of the country of origin or of the terdtory where the port or porfs of shipment named herein is/are situat€, restricting export, wbether
partially or oth€rwise, any such restristion shall be deeried by both parties to apply to this conuact and to the extent of such total o! paitial restrictioD
to preventfulfilmeat whether by shipment or by aoy other meaqswhatsoeveraod !o that extent this coDtractor aDy uDfulflled portion thereofshall be
cancelled. Sellersshall advisc Buyers without delay with the r€asonstherefor and, if requiled, Sellersmust produce proof to justify the carcellatioD.
FORCE MAJEURE, STRIKES ETc.-Sellers shall not be rcsponsible for dclay in $hipmeDt of the goods or any part thercof occasioned by any Acl
of God, strike, lockout, riot or civil commotion, combination of workmcn, breakdown of machiftf,y, 6rc or any crusc comprehended in the terrn'force
majeule'. If delay in shipment is likely to occur for any of the above rcasoDs,Shippcrs shall giv€ notic€ to their Buyers by telegram, telex or teleprinter
or by similar advice withio 7 coDs€cltive days of the o@urrencc, or not lcss than 2l coEecutive days beforc the coomencemcnt of the contract period,
whichever is late!. The notice shall state the tcasod(s) for the anticipated delay, If after giviDS such notice an cxtcotion to the shipping period is
.cquircd, then Sh.ippersshall givc furthcr troticr not late! than 2 days aftcr thc last day of the coDtract pcriod of shipmcDt stating the port or ports of
loading from which the goods were intended to be shipp€d, and shipments efectcd after the coutract period shall bc Iimited to the port or ports so
nominated. If shipment be delayed for more thaIl oaa caleDdar month, Buyers shall have the option of caacdliDg the d€layed portion of the contract,
such option to be exercisedby Buyers giving notice to be re.eivcd by SellersDot later than the 6rst busincssday after the additional calendar month.
If &yers do not exerciscthis option, such delayedportion shall bc automatically extcDdedfor a further period of ooe month. If shipment under this
cl{use be prevented during the further one month's extcdsion, the contract shall be considered void. Buye.s shall have no claim against S€llers for delay
or non-shipment under this clause, provided that Sellers shall havc supplied to Buyers, if required, satigfactory evidcnce justifyirg the delay or nod-
fulfilmeot.
NOTICES-Any Notic€s received aftcr 1600 hours o! a business day $hall b€ deemcd to have b€en receivcd on the businesr day following. A Notice
to the Broker or Agent shall bc d€emcd a Notice uoder this CoDtract. All Notices giv€n undcr this Cont.acl shall be givcn by letter or by tele$am or
by telex or by other method of rapid writteq communication. Itr qascof.€sales all Notic€s shall be passedon without d€lay by Buyers to their resp€G
tive Sellersor vice versa-
NON-BUSINESS DAYs-Saturdays, Sundays and thc ofncially rerognis€d and/or lcgal holidays of the rqlpcctive countries and aDy days which Thc
Crain & Feed Trade Association Ltd. may de€laE a! NoD-Busin€$ Days for sp€cifc purposes, shall be non-busioess days, Should the time limit for
doing any act o. giviog any notice expi.c oo a Non-Busitrcss Day, the time so limited shall be exteoded until the first busiress day thereafter.
The pedod of shipment shall not b€ affected by this claus..
DEFAULT-In default of fumlment of contract by cithcr party, the other, al his discretion, shall, after gividg notice by letter, telegxam, or telex, have
the right to sell or purchase as the case may bc, agiainst thc defaulter aqd the defaulter shall rnake good the loss, if ady, oo such purchase or sale on
d€maDd. If the party liable to pay be dissatisfed with thc p.ice of such sale or purchase or if the above right is Dot exercised aDd damages cannot be
mutually agreed,any damages,payabl. by the party in default shall be scttled by arbitlation. In the event of default by Sellersentitling Buyers to
damages,such damagesshall be basedupon thc actual or estimatedvalue of the goods on date of default, to be fixed by arbitration unlessmutually
agreed, and nothing contained in or implicd uDder this contract shall entitle Buyers to racover any damages io respect of loss of profit upon any Sub
Contracts made by thems€lves or otheN unless the Arbitrators or Board of Appeal, haviog regard to aBy special circumstances, shall io their sole
and absolute disctetior award such damages. In the event of default in shipment or delivery, damages, if any, shall be computed upo[ lhe mean
contract quantity.
Default may be declaredby Sellerat any timc after expiry ofthe contruct period, and lhe default date shall then be the first businessday after the date
of Seller's advice to his Buyer. If default has not already be€n declared thed notwithstandidg the provisions stated in sub-clause(b) of the Appropriation
Clause, if a notice of appropriation is not passed by the 10th consecutive day after the last day for approp atiod laid down in the cont.act, the Seller
shall bc dcemed to bc in default and the default date shall theD be the 6rst business day thergafte!.
CIRCLE-Where a Seller repurchases from his Buy€r or frorn any subsequent Buyer the same goods or part thereof, a circle shall be considered
to exist as regards the particular goods so repurchased, and the provisions of the Default Clause shall not apply. (For the purpose of this Clause
the same goods shall mean goods of the same descdption, from the same couDtry of origin, of the safte quality, and, where applicable, of the same
analysis warratrty, for shipmedt to the same port(s) of destination duriDg the same pedod of shipme[t), Subject to the terms of the Prohibition
Clause in the contract, if goods are not appropriated, or, having beeD appropdated documents are not presented, invoices based on the mean
cont.act qualtity shall be s€ttled betweea each Buyer aod his S€ller in the circle by paymeDt by each Buyer to his Seller of the excessof the S€lleG
invoice amount of the lowest invoice amount in the circle. Payment shall be due not later than 15 consecutivedays alter the last day for
appropiatio!, or, should the circle not be ascertainedbefore the eipiry of this time, then payment shall t'e due not tater ihan 15 consecutivedays
after the cilcle is ascertained. All Sellers and Buyers shall give every assistanceto asc€rtain the circle and when a circle shall have been ascertained
in accordance witb this Clause same shall be biDding on all parties to the circle. As between Buyers and Selle$ in the circle, the non-
presentation of documents by each S€lle! to his Buyer shall not be considercd a breach of contract. Should any party in the circle colnmit any
act comprehended id the Insolvency Clause of the contract, p.ior to the date of paymcnt being due as stated above the invoice amount for the goods
calculatedat the closing out price as provided for in the Insolvency Clause,shall be taken as the basis for settlementinslead of ihe lowest invoic€
amount in the cifcle, and in this event, each Buyer shall make paymeDt to his Seller, or each Seller shall make payment to his Buyer, of the
difreredce betw€en the closing out pdce aod his contract price as the case rnay be.
INSOLVENCY-If before the fulfilment of this contract, €itbe. party shall suspeDdpayincDt!, commit an act of bankruptcy, lotify any of his c.editoN
that he is unable t6 meet debts or that he has suspendedot that he is about to suspend payment of his debts, coDvene, call or hold a meetiog of credi-
tors, convene,call or hold a meetingto go into liquidation (other than for reconstructionor amalgarnation)or shall apply for an omcial moratorium,
have a petition prescntcd for winding up, or shall have a Receive. appointed, lhe conract shall forthwith be closed, either at the market price then
current for similar gooda, or at the option of the other party, at a p c€ to be ascertainedby re-purchaseor re-sale,and the difrerenceb€tweenthe
contract pric. and the closing price shall be the arnount payable or receivable under this codtract.
DOMrcILE-Buyers and Sellers agree that, for the purpos€ of proc€edings either legal or by arbitration, this Cotrtract shall be deemed to have been
made in England, and to be performed there, any correspondence in reference to the ofer, th€ acceptance, the plac€ of payment, o. otherwise notwith-
standing, and the Coufls of England or arbitralors appointed io EtrglaDd,as the casemay b€, shall, except for the purpose of enforcing any award
made in pusuance of thc arbitration clausehereoi have exclusivejurisdiction over all disputeswhich may arise udder lhis CoDtract. Such disputes
shall be settl€daccordingto the law ofEngland, whateverthe domicile, resideoceor placeof businessofthe pa.lies to this Contract may be or become.
Any party to this Contract residing or carrying on business els€where than in Engladd or Wales, shall for the purpose of proce€diogs at law or in
a.bitratiod be consideredas ordinarily resideot o. carrying on businessat the offces of Th€ Crain and Fecd Trade AssodiationLimited, aDd if in
scotland, he shall be held to havc prorogatedjursidiction againsthimself to the English Courts; or if in lreland to have submitted to the jurisdiction
and to be bound by the decGionof the English Courts. The serviceof proccedingsupon any such parry by leaviDg rhe sanre ai $e omce of The
Crain aod Feed Trade AssociationLimited, together with the posting of a copy of such proceedingsto his address abroad, or in Scotland or in
keland, shall be deemedgood service,any rule of law or equity to thc contrary Dotwithstaoding.
ARBITRATION-
(a) ADy disputearising out ofor under this Contrad shall be settledby arbitratioo in London in accordanc. with the Arbitratioo Rules No, 125.of
The Grain and Feed Trade Associatio! Limited, such Rules forming pan of this Contract aod of which both parties hereto shall be deamedto be
cognrsant.
(b) Neither party hereto, nor aoy personsclaiming under either of them, shall briog a|ly action or other legal proceedingsagainstthe other of them
iD rcspectof any such dispute until such dispute shall firsl have been heard and determinedb) rhe arbitrators, umpire or Board of Appeal, as the case
may be, in accordanc€with th. Arbitration Rules and it is expresslyagle€daod de.laled that rhe obtainiDgof ao award from the a.bitlators, umpire or
Board of Appeal, as the cas€ may be, shall b€ a condition p.ecedentto the right of either party hereto or of any persoa claiming uDdereither of
them to bring any actiotr or othcr legal prLceedingsagainsttbe other of them in tespectof any such dispute.
ULIS CLAUSE-ThC Unifom l-aw on Salesand the Uniform Law on Formatio.l to which effect is givcu by the Uniform Laws oD Intemational
SalesAct 1967, shall not apply to this contract.

19

ISSUEDBY THEBRITTSH|
EXTRACTFROMTHE STANDARDTRADECUSTOMS PAPERMILLS
STANDARD TRADE CUSTOMSISSUED BY THE BRITISH
PA?ER MILLS
GENERAL _ APPLYING TO ALL PAPER AND BOARD
(Hereinafter Referred to as Paper)
FORCE MAJEURE
(a) Dehyed Deliveries
In the eventof deliveryby the Selleror acceptanoe by the
Buyer beingwholly or partly preventedor interferedwith
by act of God, hostilities,threatof war, riot, strike,lock out,
civil commolion,fire, drought,flood, restrictionby
Governmentor other competentruthority, shortfallin
anticipatedsuppliesoi raw materinl,or by any of the
followingcontingencies beyondthe control of the party
affected:interruptionof transport,destruclionor damage
of premises,plant or machinery,or lny other causes whetl]er
of similarcharacteror not, beyondthe control of the party
affectedincluding,in the oaseof the Buyer,crusesuffecting
the Buyer'scustomer,the followingprovisionsshallhuve
effect:
(1) The party affectedshallgiveto thc other party
immediatenotice of causcpreven{ing or interfering
with deliveryor ucceptxnce xnd the cxlent lo whicll
deliveryor acceptarrce is preventedor interl-ered
witli
and (if possible)the problble durr{ion of the caLrse
of preventionor intert-erence.
(2) Duringthe continulnceoI tlre causeof preventionor
deliveryol tlre urrlulililedportion o1'
interference,
the contractshallb9 suspc|dcdor, itr tlle crseol x
partialpreventionor interference, feduoedunlil lhe
causeshallhaveceased1()operlte.
20
APPENDIXII
(3) Immediately the causeof the prevention or interferenca
hasceasedto operate,the party concernedshallgive
noticethereofto the other party, and assoonas
practicablethereafter delivery shall be resumedin
accordance with the termsof the contract.
(4) If a causeof preventionor interferenceshallcontinue
for more than one calendarmonth after the stipulated
dateof deliveryeitherparty may by noticein writing
to the other cancelthat portion affectedby the delay.
(5) Goodsdue for deliverywithin one calendarmonlh or
in the courseof manufactureor in tnnsit at the time
ofany noticeasaforesaidbeinggivenby the Buyer
must be acceptedby the Buyernotwithstanding such
notice,providedthe Buyerhasbeenadvisedby the
Sellerof the intendedmakingdate.
(b) lncreusedCbsts
In the eventof increases in costsof productionof paperand
boa|d cuusedby act of God, hostilities,threatof war, riot,
strikeor lock-out,the Sellershallnotify the Buyerof such
increuse in tlie costin respectof any unfilledportion of a
contractand the Buyershallhavethe optiol of agreeing to
pay the extracost or clncellingthe remainderof the
contract.Any suchnotificationshallbe sentin writing and
unlessthe Buyerwithin sevenworkingdaysof receiving
the Seller'snotil-i0ation of irlcreases
costshallby noticein
writing to the Sellerrefuseto pay suchincrersedcosttlle
Buyershallbe deemedto haveelectedto ircceptthe
reniLitrderof the contraotrnd it shallbe e\ecuted
rccordingly.
 A?PENDIX III
EXTRACT FROM THE CONTRAqT AND CONTRACTRULES OF TIIE SUGARASSOCIATIONOF LONDON

FORCE MAJEURE.
C.I.F. Free Out & C. & F. Free Out Contralts.
120. Wherc thc Contract sp€cifieSthc placc of origin of *fflf#
thc sugar and, in thc casc of any othcr contract, oncc the titDf,.
Seller has dcclaredan origin, thc following Rule shall apply
to the origin so specifi€d or dcclarcd.
Sbould Governmentintcrvention, waf, strik€s, rebel.
lion, insurrection,political or labour disturbances,civil com-
motion, fire, sfess of weather, act of God or any cause ol
Force Majeure (whether or not of like kind to those beforc
mentioned) b€yond the Scllcr's control prcvent directly or
indirecdy within thc shipping period specifiedin rhe contract
(a) the supplyto or delivery at shippingport in whole
or in part of the sugarallocatedor to be allocated
by the Seller against the contract

of
(b) thc vcssclsdcclarcd or to bc declarcd fron load.
ffif
ing tbc suglr and thc Sellcr or his sgcot bc rttD.c-le6t
unablc to cngagc altcmativc similar frcight spacc
to cnablc him to eftcct shipmcnt within thc con-
tract pcriod thc Seller shall immcdiaiely sdvisc
thc Buycr (by crblc or t lcpdnter if abroad) of
such fact and thc quantity so sficctcd and thc
shipping pcriod shrll bc cxtendcd by thirty days.
Il thc Scllcr is prcvcntcd fmm advising immcdi-
atcly through circumstancB bcyond his conuol
hc shall notify the Buycr &r soon as possible. If
thc shipmcni is still prcveoted b,y thc cod of thc
cxt€ndcd pcriod, thc Buyer shall havc thc option
of cancelling thc contract for thc affcctcd
quartity or of taking dclivcry at thc contrrct
pricc without claiming damagG as soon as thc
sugarcan bc shippcd. Thc Buycr's dccisionshall
bc notified to thc Sbller (by cablc or tclcprintcr il
abroad) promptly rftcr rcccipt of the Scllcr's
advicc. Should thc Buycr clcct not to canccl thc
contract but shipmcnt of thc sugar in wholc or
in part still remain impo&siblesirty days aftcr
thc last shipping datc providcd for by thc con.
tract, thc contract shall bc void for such quantity
without penalty payablc or rcccivablc-

. In all c.s6 whcrc the controct provides for

dclivcry by instalments,each instalmentshall be
deemcd a scparatc contract.

Thc party to a contractclaiming Forcc Majeurc

shall, il requcstcdby thc othcr party submit such
cvidcncc as may bc nccassary to provc satisfac.
torily thc cxistcnca of any causc of prcvention
or delay claimcd undcr this Rulc.