Wednesday, January 12, 2011

What is a Force Majeure Clause?

If you’ve done many contracts for meetings or conferences, you are probably familiar with the Force Majeure section (sometimes called “impossibility” or “acts of God” clauses) of hotel contracts. It's purpose is to protect the parties involved in case something catastrophic happens that makes it impossible for them to fulfill the terms of the contract and, if you are not familiar with it, you should be.

A basic clause may run something like this: “The performance of this agreement is subject to termination without liability upon the occurrence of any circumstance beyond the control of either party to the extent that such circumstance makes it illegal or impossible to provide or use the hotel facilities.”

The clause will usually go on to include examples of what qualifies for exercising the clause (disaster, war, civil disorder, government action, etc.) and what does not (such as strikes involving agents of the side seeking protection of the clause). An action date is typically included as well – the party seeking protection must notify the other party of their intent to use this clause within a certain time frame of the circumstance becoming known. The Force Majeure clause can be long and detailed or short and to the point. In either case, it should incorporate a few key elements.

First, the basic wording must be there, acknowledging that circumstances beyond the control of either the planner or the hotel may make it impossible for one or both parties to meet their contractual obligations. Immediately after 9/11, for example, many meetings were canceled due to the grounding of flights nationally for some time after the attacks – people simply could not get to meetings that required air travel. This was an event well beyond the control of the planners that made it impossible for them to meet their contractual obligations to hotels.

Second, including examples is a good idea. That helps make clear when the clause can be used and when it cannot. If there is a specific circumstance that concerns you, be sure to include it if the hotel does not have it in their existing language. For example, if you are concerned about hurricanes, include that in the list of examples. If you work with government groups, failure of the legislature to pass a budget may mean that the group will need to cancel – government action (or, in this case, inaction) could make it impossible for the group to meet its obligations.

Third, do include a “window of action” to make a decision. Once notified that a particular circumstance exists that could be a problem, immediate action should be taken – too long of a delay in activating the Force Majeure clause effectively means that you agree to continue with the contract as written.

Finally, and this one is the most important in my mind, the clause must be reciprocal. This means that it imparts the same protection to both parties. At one time, I saw many contracts with Force Majeure clauses written so as to provide protection for the hotel but none for the group contracting with them. So, a hotel could say that the recent earthquake made it impossible or unsafe for them to meet their obligations to the group but the group had no such option available to them (contractually). Fortunately, this has changed considerably over the years and most hotel contracts now do have reciprocal language here. Double-check it, though. Occasionally, I will still see one that protects one side and not both. When that happens, I make sure to change the clause to protect both parties.

~ Karl Baur, CMP • Project Director, RDL enterprises