THE CONCEPT of force majeure is familiar to commercial lawyers. Although it is often treated as a standard or “boilerplate” clause that appears in commercial contracts and does not require any attention or negotiation, it is important to be aware of how the concept operates and the different ways in which it is treated under the laws of different jurisdictions. This article examines the concept of force majeure and how it operates under the laws of common law jurisdictions and Chinese law.
THE CONCEPT OF FORCE MAJEURE
The term force majeure as used in English is actually a French term that means “superior force” or “superior strength”. It is not certain how the term came to be used in English, but it is likely that it was inserted in English commercial contracts by parties who were familiar with the term as it was used in the French Napoleonic Code. Accordingly, it is an interesting example of how a concept that was originally embodied in the laws of a civil law jurisdiction was adopted for use in contracts governed by English law.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.