This article, one in a series of studies examining the evolving nature of contractual terms, critically explores the ongoing Russian war on Ukraine in the context of force majeure clauses in private commercial contracts. The conflict presents unique and complex challenges for parties seeking reliance on the clause. Thus, the article explores the traditional criteria for force majeure, including the un-foreseeability and uncontrollability of events and the aftermath on performance. Further, the article investigates viable alternatives to the clause with an askance eye on foreseeability.
The motivation stems from scholarly conversations and an encounter with the American Bar Association's recommendation to its members on force majeure given the war.
Drawing on an extensive review of extant cross jurisdictional legal literature, the article examines traditional approaches of interpretation and construction. However, it eschews them as inadequate in the context of the conflict. It calls, instead, for a more nuanced and flexible approach to drafting force majeure clauses. Further, it identifies foreseeability, ab initio, as a strong tool of risk management that may produce an informed approach to performance.
Ultimately, this article, cross-jurisdictional in structure and focused on intellectual examination, contributes, significantly, to the literature on force majeure clauses in commercial contracts. It provides useful guidance for negotiating and drafting contracts in emergent situations. By examining the challenges posed by the conflict, it advocates for a more nuanced and flexible approach to contract drafting and review. It should interest scholars, practitioners, and policymakers working in the areas of contract law.
The gravamen is that preparedness and foreseeability are sound tools for effective management of risks inherent in contracts despite negotiations and legal stipulations.
Contract terms refer to the overall substance and structure of a contract. A contract clause is specific provision in an agreement to address specific issues or contingencies.
Keywords: Contract terms. Contract clauses. Force majeure. Non-performance. Foreseeability.
Contract breach. Russia. Ukraine. Covid-19. Contingency Theory.