Spring 2020 Gavel 268650 SBAND Gavel Magazine_web | Page 28

Force Majeure
By Lynn Block
Force majeure is a French term meaning, literally, “superior strength.”
North Dakota Supreme Court cases have examined force majeure,
also called “acts of God,” in the context of liability for negligence and
liability in cases where no clause was present in a contract.
A force majeure clause is a provision in a contract that excuses a
party from not performing its contractual obligations, that becomes
impossible or impracticable, due to an event or effect that the parties
could not have anticipated or controlled.
The current pandemic has many of us looking back at the force
majeure clauses in our contracts.
Codified in North Dakota, force majeure looks like this:
NDCC, 9-11-04
§ 9-11-04. Want of performance or offer
– When excused
The want of performance of an obligation or of an offer
of performance, in whole or in part, or any delay therein,
is excused by the following causes to the extent to which
they operate:
1. When such performance or offer is prevented or
delayed by the act of the creditor or by the operation
of law, even though there may have been a stipulation
that this may not be an excuse;
2. When it is prevented or delayed by an irresistible
superhuman cause or by the act of public enemies of
this state or of the United States, unless the parties
have agreed expressly to the contrary; or
3. When the debtor is induced not to perform or offer
performance by any act of the creditor at or before the
time at which such performance or offer may be made
and which the creditor has not rescinded before that
time.
Codifications: Civ. C. 1877, § 855; R.C. 1895, § 3820;
R.C. 1899, § 3830; R.C. 1905, § 5265; C.L. 1913, § 5821;
R.C. 1943, § 9-1104. NDCC 9-11-04, ND ST 9-11-04.
Current with legislation effective through Jan. 1, 2020,
from the 66th General Assembly.
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It’s an old concept. Entzel v. Moritz Sport and Marine, 841 N.W.2d
774, 2014 ND 12 provides a comprehensive analysis of a force
majeure clause, relying, in part, on Black's Law Dictionary and
Williston on Contracts:
Black's Law Dictionary defines a force majeure clause
as “[a] contractual provision allocating the risk of loss
if performance becomes impossible or impracticable,
esp[ecially] as a result of an event or effect that the
parties could not have anticipated or controlled.”
Black's Law Dictionary 718 (9th ed.2009). According to
30 Williston on Contracts § 77.31, at 364 (4th ed.2004),
a force majeure clause is equivalent to an affirmative
defense. “What types of events constitute force majeure
depend on the specific language included in the clause
itself.” Id. “[N]ot every force majeure event need be
beyond the parties' reasonable control to still qualify
as an excuse.” Id. at 367. “A party relying on a force
majeure clause to excuse performance bears the burden
of proving that the event was beyond its control and
without its fault or negligence.” Id. at 365.
Other comparatively recent cases calling out force majeure include,
Pennington v. Continental Resources, Inc., 932 N.W.2d 897, 2019
ND 228 (a fact issue as to whether lessee acted diligently and in
good faith with regard to delay in obtaining drilling permit, as
could support application of force majeure clause to find that such
delay did not result in termination of lease, precluded summary
judgment); The City of Moorhead v. Bridge Company, 867 N.W.2d
339, 2015 ND 189 (reliance on the force majeure provision was
puzzling because there was no claim of default of obligations);
Red River Commodities, Inc. v. Eidsness, 459 N.W.2d 805 (1990)
(farmer's forward crop contract with grain dealer excused
performance for acts of God or other causes beyond control of
parties, and thus, nonoccurrence of loss of farmer's crop was basic
assumption of contract).
A common and more immediate application of a force majeure
defense occurred when my three-year-old granddaughter, Cecilia,
recently reneged on a promise to take a family walk, stating “I’ll
stay home because of the coronavirus.” Her parents excused her
performance.
Lynn Block is a grandmother and a
lawyer for Discovery Benefits in Fargo.