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A1 sold goods(ie: sneakers) to B. Their contract of sale includes a
force majeure clause, w/ no specified events stipuilated. The goods
are to be manufactured by A2, a subisidiary of A1.
B has been waiting for the goods to be shipped until A2, which is 100%
owned by A1, filed for bankruptcy, and by court orders, A2 is
prohibited from manufacturing goods as of now.
What can B(the buy/importer) do now?
If the goods are swimsuits, which the buyer almost can't retail but in
summer seasons, and the delay seems to last well into September, what
would be the difference?
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Events specified in a force majeure(f/m) clause discharge parties from
performance. Then, events NOT specified in the f/m clause discharges
parties too? Or parties are liable to such events even thouhg they are
out of control?
F/m clauses w/ no specific event(ie: any event out of control of X)
are legally meaningless? To what extent of detail, those events are
required to be specific?
Is there any good reference on f/m on the Net?
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Thanks in advance.
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Thanks for your advises.
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http://www.bnabooks.com/ababna/railway/2002/majeure.doc.
Joseph Guerrieri, Jr. wrote:
Force majeure clauses typically provide a list of events that will
constitute force majeure. "'Ordinarily, only where a force majeure
clause specifically includes the event alleged to have prevented
performance, will a party be excused from performance.'" In re Millers
Cove Energy Co., 62 F.3d 155, 158 (6th Cir. 1995) (quoting United
States v. Panhandle E. Corp., 693 F. Supp. 88, 96 (D. Del. 1988)).
Frequently, force majeure clauses include some form of "catchall"
provision to cover events not specifically enumerated. Courts
generally read such provisions in light of the force majeure events
specified by the contract. Thus, courts assess whether the alleged
force majeure event is of the "same general character" as those events
listed. Matador Drilling Co. v. Post, 662 F.2d 1190, 1198 (5th Cir.
1981); R & B Falcon Drilling Co., 154 F. Supp. 2d at 974 ("To get a
sense of what types of events excuse performance, the Court will look
to the events enumerated in the clause."). This is a specific
application of the broader contract principle known as eusdem generis.
It is well settled that force majeure clauses are to be narrowly
construed to encompass only events either specifically identified, or
of the same variety as those specifically identified.
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Thanks for your advises.
========================
http://www.bnabooks.com/ababna/railway/2002/majeure.doc.
Joseph Guerrieri, Jr. wrote:
Force majeure clauses typically provide a list of events that will
constitute force majeure. "'Ordinarily, only where a force majeure
clause specifically includes the event alleged to have prevented
performance, will a party be excused from performance.'"....
It is well settled that force majeure clauses are to be narrowly
construed to encompass only events either specifically identified, or
of the same variety as those specifically identified.
That is a good point, but consider that those are US cases, and "force
majeure" is a civil law concept, mostly foreign to the US.
Force majeure law is much more developed in the EU and in civil-law
countries in general; if your original question concerned an issue
where the courts of a country other than the US would take interest,
you will probably have to look at international conventions, such as
the CISG, the UNIDROIT, or the EU Principles. Those have very
different notions of force majeure than what your analysis of US cases
would indicate.
--
Not a lawyer,
Chris Green
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