Acts of God and Force Majeure

There are terms in every construction contract that folks read but do not fully understand.  Acts of God and force majeure are two of those. You may think they are two ways of saying the same thing. But you would be wrong.

Acts of god are physical environmental events outside of anyone’s control such as floods, earthquakes, tornadoes or other natural disasters. Force majeure, on the other hand, is a human caused event, such as an act of war, a terrorist act, a labor dispute or an electrical system failure, but it does not include a party’s death. Both are ways of describing those unforeseeable circumstances preventing a party from fulfilling an agreement. They are included in construction contracts to excuse one from liability for a lack of timely performance.

These terms should be in every construction contract as they will protect a party from any event that is unforeseen, unforeseeable and out of anyone’s actual control.

Whether you are the contractor with a project to complete, a material supplier with products to deliver, or a subcontractor with a schedule to meet, having both clauses in your contract is a good decision.

How to Deal with Weather Delays

With hurricane season upon us, contractors, especially those in South Florida, need to be attentive to the limitations within any contract they sign relative to weather delays. Is the delay excusable (not in the control of the contractor) versus inexcusable (caused by events within the control of contractor).

The threshold question in making this determination is foreseeability. And clearly, one working on a project in Miami during the months of August and September can anticipate there is a fair likelihood of some sort of weather event impacting the work.  With this in mind, consider the addition of the following:

If the worksite becomes unworkable for longer than – continuous work days or – cumulative work days during contractor’s planned work schedule at the project, for any reason beyond contractor’s control, including but not limited to acts of God, pandemics, extreme weather and hurricanes, contractor’s contract time shall be extended without penalty in an amount equal to the time lost due to such delay.

While certain amount of time is expected to be lost on any project due to inclement weather, it should not lead to a contractor’s ruin. Plan accordingly, adjusting the amount of days to suit the conditions, time of year and geographic area of the work.