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Force majeure in construction contracts – What does it mean?

The term ‘force majeure’ is derived from French law and, whilst in France the term has a precise legal meaning, in English law it does not. Although it is an important principle in English law, it is dealt with differently by different forms of contract and the question of what constitutes a force majeure event will depend on the interpretation of the construction contract in question.

Generally, this refers to an unforeseeable event, act, or circumstance beyond the reasonable control of the parties, preventing them from fulfilling their contractual obligations.

The party relying on a force majeure clause must be able to prove that the delay or disruption was caused by the force majeure event.

Force majeure in JCT

The JCT suite of contracts does not define force majeure. However, force majeure is listed as one of the Relevant Events which may entitle the contractor to an extension of time to complete its duties under the building contract. It is worth noting that force majeure does not constitute a Relevant Matter and, as such, the contractor cannot claim loss and expense as a result of a force majeure event (unless this has been changed in a Schedule of Amendments). In practice, this means that whilst the contractor would not have to pay liquidated damages, it would bear any costs resulting from the delay, essentially splitting the financial risk of such an event between the employer and contractor.

The parties may be entitled to terminate a construction contract where a force majeure event occurs. Indeed, various events (including force majeure events) that cause the works to be suspended for the period specified in the Contract Particulars (the default period is two months) will entitle either party to give notice to the other that, unless the suspension ends within a specified period (the default period is seven days), it will terminate the contract. After the seven days (or other period set out in a Schedule of Amendments to JCT) have passed, either party has the right to terminate the contract.

Considering the absence of any definition, the parties should always carefully consider whether the reason for suspending the works is enough to constitute a force majeure event since if a party suspends its obligations without due cause, this could be considered as a repudiatory breach. Therefore, it may be worth defining force majeure in a Schedule of Amendments to the JCT to give the parties clarity over what will constitute a force majeure event during the works.

Force majeure events – examples

The following circumstances commonly fall under force majeure events:

  • ‘Acts of God’ which refer to natural incidents that are completely beyond human involvement and could not have been prevented with any foresight, planning, or care. For example, unexpectedly and unusually adverse and dangerous weather conditions and natural catastrophes like floods, hurricanes, earthquakes, and fires. It may also include widespread illness and pandemic.
  • Social, political, or other individual or group actions such as wars and armed conflicts, invasions, riots, rebellions, strikes, terrorism, etc.
  • Government actions, such as unforeseen or uncontrollable changes to law and legislation.
  • Nuclear contamination.

In practice, the following events are often debated as force majeure in construction contracts:

  • Brexit;
  • The COVID-19 pandemic;
  • The global shortage of construction materials and products that emerged in 2021;
  • The war between Ukraine and Russia.

Force majeure does not normally cover changes in economic or market circumstances, for example if the contract becomes unprofitable to fulfil. More generally, any disruptive circumstances that are foreseeable and/or controllable and could have been prevented will not constitute force majeure events.

A common amendment to the JCT suite of contracts is to exclude strikes or delays to the progress of the works that are limited to the works or to the contractor at its various sites of operation or in any way caused by the contractor in question.

Relying on force majeure in practice

A party relying on a force majeure provision must be able to establish a causal link between the force majeure event and the delay or impediment to the performance of the party’s contractual obligations.

The procedures will depend on the precise contract terms but, for example:

  • Under an unamended JCT Design & Build Contract 2016, the contractor must notify the employer ‘forthwith’, identifying the applicable Relevant Event(s), ‘if and whenever it becomes reasonably apparent that the progress of the Works or any Section is being or is likely to be delayed’.
  • The NEC 3 and NEC 4 Engineering and Construction Contracts, which are rooted in the principle of mutual trust and co-operation, require a contractor to give early warning when it becomes aware of any matter which could increase the price, delay completion or a key date, or impair performance of the works.

Failure to do so may well result in the contractor losing its entitlement, so it is crucial to be familiar with the notice requirements of your contract and keep on top of any deadlines.

Force majeure clauses also often require the parties to take the necessary steps to mitigate the impact of the force majeure event – for example by requiring the parties to use reasonable or best endeavours to mitigate the consequences of the relevant event. Failure to do so may prevent the contract from being able to claim an extension of time.

Although not explicitly related to force majeure, Clause 2.28.6.1 of the JCT Standard Building Contract 2016 requires the contractor to “constantly use his best endeavours to prevent delay in the progress of the Works or any Section… and to prevent the completion of the Works or Section being delayed or further delayed beyond the relevant Completion Date”.

Difference between force majeure and frustration

Whilst a force majeure event may delay the completion of a project, the doctrine of frustration may apply in cases where an unforeseen intervening event or circumstance which “strikes to the root of the contract” and makes performance:

  • physically or commercially impossible or illegal; or
  • radically different from that anticipated by the parties;

This may include a change in law or regulation which makes the performance of the contract illegal or a supervening illegality such as a war outbreak which makes dealings with “alien enemies” illegal.

Frustration of the contract occurs automatically upon the occurrence of the event and the parties are discharged from performing any further obligations after that point. However, obligations and rights accrued up to that date remain valid and enforceable.

Frustration is a permanent remedy and a legal minefield so should only be relied upon as a last resort, and with specialist legal advice. Very rarely does this apply in practice, as typically it only arises in the context of a supervening event, making it very difficult to establish. It cannot be used where the parties have foreseen the relevant event and contractually provided for it.

It is the narrow application of frustration under English law that has led to the use of force majeure provisions in construction contracts to ensure that a reasonable solution and remedy are available for a range of unforeseen circumstances which prevent contract performance.

Tip – defining force majeure in your construction contract

For the reasons explained above, it is often worthwhile to include a definition of force majeure and consider whether such events should be considered ‘Relevant Matters’ within your construction contract to limit future disputes over whether a delay is due to a force majeure event, and the related time and cost consequences. For example, it is quite common for parties to agree to include a non-exhaustive list of occurrences that will constitute force majeure events.

Please get in touch with our construction team for advice on unforeseen events impacting your contract or other delays, at amy.lewis@LA-law.com.


Co-written by

Amy Lewis

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