Contract Discussion Disclaimer: I'm not a lawyer, nor have any been named after me to the best of my knowledge. (Note to John Grisham: Feel free to name a lawyer character after me in your next novel.) In this post, I will share with you my personal experiences in drafting and negotiating contract language.
In a previous post, I defined Force Majeure (which means "greater or superior force" in French as a clause in a contract that excuses failure to perform contractual duties for reasons including, but not limited to: strikes, government acts or orders, market restrictions, war, fire, flood, earthquakes, typhoons, blizzards or other natural disasters or Acts of God.
There is some debate over whether this clause should be included in contracts at all.
Of course, vendors want to protect themselves from being in breach of a contract due to something that is beyond their control. That is understandable. Really, any reasonable person would make concessions for performance issues in the event of a monsoon flooding downtown Toledo. (Yes, I know that monsoons don't occur in Ohio, but with this clause, you're covered just in case!)
Here's where it gets tricky - the "including, but not limited to" part really could encompass anything that vendors or their lawyers could argue should fall into this category. For example, reasonable people understand the challenges of blizzards. Check the Weather Channel website and you can find the exact definition of "blizzard." What about a "severe" snowstorm, does that still count for this clause? Who defines "severe?"
To really play Devil's advocate, all companies have some form of disaster recovery plans. Large companies have entire departments devoted to the issue. It's their job to ensure that business takes place as usual in the event of a disaster. Therefore, is this contract performance "wiggle room" really necessary?
What do you think?
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