The phrase “force majeure” derives from the French phrase a “superior force.” Black’s Law Dictionary, 673-74 (8th ed., 2004) defines a force majeure clause as “[a] contractual provision allocating the risk if performance becomes impossible or impractical, . . . as a result of an event or effect that the parties could not have anticipated or controlled.” Typical force majeure events include, but are not limited to, acts of nature, such as floods and hurricanes, acts of God, acts of people, such as riots, strikes, war, and acts of terror, and other events beyond the control of the parties. In today’s world, force majeure events now include epidemics, pandemics (e.g., Covid-19) and other similarly related government shutdowns.

Force majeure clauses generally “are narrowly construed, and ‘will generally only excuse a party’s nonperformance if the event that caused the party’s nonperformance is specifically identified.’” Id. (quoting ARHC NVWELFL01, LLC v. Chatsworth at Wellington Green, LLC, No. 18-80712, 2019 U.S. Dist. LEXIS 19264, 2019 WL 4694146, at *3 (S.D. Fla. Feb. 5, 2019)). However, some Florida courts have upheld broad force majeure provisions. See Home Devco/Tivoli Isles LLC v. Silver, 26 So.3d 718, 722 (Fla. 4th DCA 2010) (explaining that Florida precedent allows broad force majeure clauses if they do not render the contract illusory).

The force majeure clause is an important protection device for contractors because a force majeure event that occurs during a construction project may not only result in delays in performance but increased costs of performance. A properly drafted force majeure provision will protect the contractor from assuming such risks incurred from events otherwise not in their control or of their making.

In practice, to figure out whether a force majeure clause exists, it is important to begin with the contract between the contracting parties. The plain language of the force majeure clause itself defines when, and under what circumstances, the contracting parties are excused from performing under the agreement. See KRG Oldsmar Project Co., LLC v. CWI, Inc., 358 So. 3d 464, 48 Fla. L. Weekly D597, 2023 WL 2588634, at *3 (Fla. 2d DCA 2023). “When a contract is clear and unambiguous, the court’s role is to enforce the contract as written, not to rewrite the contract to make it more reasonable for one of the parties.” Id. (quoting Snyder v. Fla. Prepaid Coll. Bd., 269 So. 3d 586, 592 (Fla. 1st DCA 2019)).

So what does a force majeure clause look like? The American Institute of Architects’ General Conditions of the Contract for Construction (AIA Document A201-2017) contains the following model force majeure provision:

§ 8.3 Delays and Extension of Time
§ 8.3.1
If the Contractor is delayed at any time in the commencement or progress of the Work by (1) an act or neglect of the Owner or Architect, of an employee of either, or of a Separate Contractor; (2) by changes ordered in the Work; (3) by labor disputes, fire, unusual delay in deliveries, unavoidable casualties, adverse weather conditions documented in accordance with Section 15.1.6.2, or other caused beyond the Contractor’s control; (4) by delay authorized by the Owner pending mediation and binding dispute resolution; or (5) by other causes that the contractor asserts, and the Architect determines justify delay, then the Contract time shall be extended by Change Order for such reasonable time as the Architect may determine.

ConsensusDOCS A200 (2011) also contains a model force majeure provision:

6.3 DELAYS AND EXTENSIONS OF TIME
6.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work by any cause beyond the control of the Contractor, the Contractor shall be entitled to an equitable extension of the Contract Time. Examples of causes beyond the control of the Contractor include, but are not limited to, the following: acts or omissions of the Owner, the Architect/Engineer or Others; changes in the Work or the sequencing of the Work ordered by the Owner, or arising from decisions of the Owner that impact the time of performance of the Work; transportation delays not reasonably foreseeable; labor disputes not involving the Contractor; general labor disputes impacting the Project but not specifically related to the Worksite; fire; terrorism, epidemics, adverse governmental actions, unavoidable accidents or circumstances; adverse weather conditions not reasonably anticipated; encountering Hazardous Materials; concealed or unknown conditions; delay authorized by the Owner pending dispute resolution and suspension by the Owner under Paragraph 11.1. The Contractor shall submit any requests for equitable extensions of Contract Time in accordance with the provisions of Article 8.

6.3.2 In addition, if the Contractor incurs additional costs as a result of a delay that is caused by acts or omissions of the Owner, the Architect/Engineer or Others, changes in the Work or the sequencing of the Work ordered by the Owner, or arising from decisions of the Owner that impact the time of performance of the Work, encountering Hazardous Materials, or concealed or unknown conditions, delay authorized by the Owner pending dispute resolution or suspension by the Owner under Paragraph 11.1, the Contractor shall be entitled to an equitable adjustment in the Contract Price subject to Paragraph 6.6.

Several aspects of these force majeure provisions merit discussion. First, the AIA provision only provides the Contractor with an extension of time. From the perspective of a contractor, it is also advisable to negotiate entitlement to additional payment caused by force majeure events, including, but not limited to, increases in labor and materials prices and additional general conditions for the extra time on the project. The ConsensuDOCS version authorizes an adjustment in the contract price; however, a Contractor’s entitlement to adjustments does not extend to all the events entitling the Contractor to an extension of time and is limited to those delays caused by the Owner, Architect/Engineer, or others and does not include any other force majeure-type events. Both versions also encompass events beyond standard force majeure events, such as acts or neglect of the Owner or Architect or changes ordered in the work. For the contractor, this expansive language is welcome, but the owner may wish to eliminate the language or limit extensions of time to certain enumerated events.

Overall, a carefully crafted force majeure clause can protect a Contractor from numerous unexpected events that would otherwise destroy or reduce the value of a project or contract. The attorneys at Soto Law Group, P.A. are knowledgeable and well versed in every facet of construction contract negotiating and can help you craft a force majeure provision suitable for your needs. Don’t hesitate to contact our firm should you need assistance. For further information please contact Douglas Clarke, Esq. at 954-567-1776.

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