The doctrine of force majeure operates as a contractual mechanism to allocate risk where external, uncontrollable events disrupt contractual performance. Its legal treatment varies across jurisdictions, influenced by codified principles in civil law systems and express contractual provisions in common law jurisdictions. This article outlines the treatment of force majeure under civil and common law, compares it with the English doctrine of frustration, and examines its application in NEC4 contracts and recent case law arising from the COVID-19 pandemic.

Common law legal systems

Force majeure is a French term meaning ‘superior force’ and is a doctrine generally recognised in common law legal systems. For example, Article 1218 of the Code Civil states:

‘There is a force majeure in contractual matters when an event beyond the control of the debtor, which could not reasonably have been foreseen at the time of conclusion of the contract and the effects of which cannot be avoided by appropriate measures, prevents the debtor from performing his obligation.’

Article 1218 sets out three tests that all need to be satisfied before an event will be deemed to have prevented a party from contract performance. The tests are:

1.         beyond the control of the debtor,

2.         could not reasonably have been foreseen at the time of the contract, and

3.         whose effects could not be avoided.

In Germany, force majeure is not expressly stated in the Bürgerliches Gesetzbuch (BGB); however, it does provide for exclusion of performance due to ‘impossible’ conditions. §275(1) of the BGB states:

‘A claim for performance is excluded to the extent that performance is impossible for the obligor or for any person.’

The  test of impossibility and the obligation of performance is subject to that which ‘requires expense and effort which…..is grossly disproportionate to the interest in performance of the obligee.’ The level of expense and effort which the law may require before performance will be excused may be greater if the obligor is responsible for the events which have created the obstacle to performance.^[1]

Force majeure and frustration in English law

Since force majeure is not automatically implied under English law, parties wishing to rely on the doctrine must expressly include it in the contract. The party relying on the clause must demonstrate that the event falls within the scope of the clause, that it caused the failure to perform, and that reasonable steps were taken to mitigate its effects.^[2]

 The doctrine of force majeure is similar but narrower in scope compared to the principles of the English law of frustration. The application of force majeure relies on circumstances that are unforeseen and render performance impossible.^[3]  In English law, an event may frustrate the contract even though performance is still physically possible.^[4]

Force majeure (prevention) in NEC4 contracts

Clause 19 of the NEC4 Engineering and Construction Contract (ECC) introduces the concept of a prevention event, a contractual mechanism that addresses extraordinary occurrences disrupting performance. Although similar in effect to the common law doctrine of force majeure, the NEC4 deliberately avoids using this term and instead relies on its own defined criteria to determine the occurrence and consequences of such events. If you would like to learn more about prevention under the NEC4 contracts please click here.

COVID-19

In more recent times, the courts have had to consider whether the effects of the COVID-19 pandemic amounted to a frustrating event. In Salam Air,^[5]  an Omani airline, sought an injunction to prevent Latam Airlines from making demands related to aircraft lease agreements. Salam Air argued that the contracts had been frustrated due to regulations issued by the aviation authority in response to the COVID-19 pandemic, which led to a significant decrease in demand for air travel. The court held that the contracts were not frustrated because, although the pandemic and resulting regulations made the operation of the leases more difficult, they did not render performance impossible or transform the obligations into something radically different from what was originally contemplated. Also, in Bank of New York Mellon,^[6] the court held that a tenancy agreement had not been temporarily frustrated due to an eighteen-month enforced closure of the leased premises during the pandemic because performance of the contract (a fifteen-year lease) had not been impossible.

However, in Dwyer,^[7]  the court accepted that a clause allowing the defendant to declare the pandemic as a ‘force majeure’ event should have been invoked.  The court held that there was an implied term that the defendant’s authority to invoke the force majeure clause should be exercised ‘honestly, in good faith and genuinely.’^[8]  Ultimately, the court decided that failure to invoke the clause was a repudiatory breach, allowing the claimant to rescind the contract.

Conclusion

Force majeure is a significant legal doctrine in contracts mitigating the consequences of disruptive external events. While civil law systems may provide statutory guidance, common law jurisdictions require express contractual provisions. The English approach distinguishes between force majeure and frustration, with the former being more constrained. Recent judicial decisions following the COVID-19 pandemic illustrate the importance of precise drafting and the good faith exercise of contractual rights when invoking force majeure provisions.

David Hunter
Daniel Contract Management Services Ltd

August 2025 

^[1] § 275(2) BGB

^[2] Lebeaupin v Richard Crispin and Company [1920] 2 K.B. 714; RTI Ltd v MUR Shipping BV  [2024] All ER (D) 61 (May)

^[3] Eva Steiner: French Law A Comparative Approach (2nd edn, OUP 2018) 245

^[4] Krell v Henry [1903] 2 KB 740 cf Herne Bay Steamship Cp v Hutton [1903] 2 KB 683; Canary Wharf (BP4) T1 Ltd v European Medicines Agency [2019] EWHC 335 (Ch).

^[5] Salam Air SAOC v Latam Airlines Groups SA [2020] EWHC 2414 (Comm).

^[6] Bank of New York Mellon (International) Ltd v Cine-UK Ltd [2021] EWHC 1013

^[7] Dwyer (UK Franchising) Ltd v Fredbar Ltd & Shaun Rowland Bartlett [2021] EWHC 1218 (Ch)

^[8] Ibid [263]