Written by attorney Christopher J. Leal

Quick Overview of Force Majeure Clauses in Florida Contracts

As a general rule someone who enters into a contract may wish to limit their liability in the event that they are delayed in the performance of a contract due to circumstances out side of their control. One method of doing this is to insert a force majeure clause. A force majeure clause is a contractual provision allocating the risk if performance becomes impossible or impracticable. Force majeure clauses can absolve a party from liability for a failure to perform or for a delay in performance in the event of certain contingencies outside the contracting party’s control, such as fires, floods, strikes, and the like. Restatement (Second) of Contracts, 11 IN NT. A claim of force majeure is equivalent to an affirmative defense. Typically, nonperformance due to economic hardship is not enough to fall within the force majeure provision. Valencia Center, Inc. v. Publix Super Markets, Inc., 464 So.2d 1267 (Fla. 3d DCA 1985).

A party relying on a force majeure clause to excuse delay of performance bears the burden of proving that the event was beyond its control and without its fault or negligence. Gulf Oil Corp. v. F.E.R.C., 706 F.2d 444 (3d Cir. 1983). A party is not entitled to a finding of excusable delay unless it can show that the time delaying event was unforeseeable, occurred outside the party’s control, occurred without its fault or negligence, and was the cause of the delay. Fru-Con Const. Corp. v. U.S., 44 Fed. Cl. 298, 314 (1999). Force majeure clauses are permissible under Florida law; “provisions to allow time extensions for such things acts of God or material shortages are generally permissible." Stein v. Paradigm Mirsol, 2008 WL 344492 (M.D. Fla. 2008).

Florida law construes force majeure clauses to exclude only those delays that are excusable under the doctrine of impossibility. Florida Power Corp. v. City of Tallahassee, 18 So.2d 671, 675 (Fla. 1944). The Florida Supreme Court held that performance was excused under this type clause only if an event was not foreseeable, could not have been avoided, and was the sole and proximate cause of the nonperformance. Id. at 675. What types of time impact events constitute force majeure depend on the specific language included in the clause itself and the “control" exercised over the time impacting event." The enumerated examples in the force majeure clause must be construed in the context of “control" a delaying event cannot excuse untimely performance unless it was outside the seller’s “control." See U.S.v. Brooks-Callaway Co., 318 U.S. 120 (1943); J.D. Hedin Const. Co. v. U.S., 408 F.2d 424 (Ct. Cl. 1969).

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