Meaning “superior force”, also known as cas fortuity or casus fortuitous “chance occurrence, unavoidable accident” is a common clause in contracts that essentially frees both parties from liabilities or obligations when an extraordinary event or circumstances beyond the control of the parties, such as war, strike, riot, crime or an event described by the legal term act of god, prevents one or both parties from fulfilling their obligations under the contract.
In some cases, the force majeure clause does not excuse a party’s non-performance entirely, but only suspends it for the duration of the force majeure event.
As provided under Article 273 of the United Arab Emirates Civil Code, which states that in contracts binding on both parties, if force majeure supervenes which makes the performance of the contract impossible, the corresponding obligation shall cease, and the contract shall be automatically canceled. Article 273 of the same code pertains to the total impossibility for either party to perform his obligation under the agreement.
In the case of partial impossibility, Article 273 (2) of the same code states that part of the contract which is impossible shall be extinguished, and the same shall apply to temporary impossibility in continuing contracts, and in those two cases it shall be permissible for the obligor to cancel the contract provided that the obligee is so aware.
Thus, in order for either party to the contract invoke force majeure to cancel or suspend the performance or fulfillment of obligations under the contract, the following elements shall concur:
- Externality- the party must have nothing to do with the event’s happening;
- Unpredictability- the event could not be foreseen; and
- Irresistability- the event could not be prevented.