Force majeure is a specific clause that is often included in a commercial contract. It refers to situations where an agreement cannot be performed (eg the obligation to provide payment) because of circumstances outside the control of the parties. Where these circumstances arise and prevent the contractual obligations from being fulfilled, the contract is temporarily suspended and can even be terminated if the circumstances do not change.
Most force majeure clauses set out the specific circumstances in which the clause will operate, known as ‘Force Majeure Events.’ Provisions often cover natural disasters like hurricanes, floods, earthquakes, and weather disturbances (sometimes referred to as ‘acts of God’). Other covered events may include war, terrorism or threats of terrorism, civil disorder, labour strikes or disruptions, fire, disease or medical epidemics or outbreaks.
As Brexit does not fall into any of the standard Force Majeure Events, Brexit-related disruption would need to be specifically referred to in a force majeure clause. Where Brexit is not mentioned, a business is unlikely able to rely on its force majeure clause to suspend its contractual obligations.