With Storm Brendan causing disruption across Scotland, it's an appropriate time to reflect on the importance of a "force majeure" clause within commercial contracts.
A force majeure is essentially an unforeseeable circumstance that prevents someone from fulfilling a contract. For those operating in Scotland's marine economy, their occurrence is not uncommon, as recent reports show only too well.
A contract that's fit for purpose in the marine economy
A sufficiently drafted force majeure clause will operate so as to provide some limited protection to the parties involved where there has been some kind of event (or sequence of events) outwith the reasonable control one of the parties, the effect of which prevents or delays the performance of that party's obligations under the contract.
Such events will usually include, among other things, the occurrence of "adverse weather conditions" or "acts of god" (which would encompass flooding).
It is common for contracts to be formed solely through email correspondence or to be concluded on the basis of one party's standard "Terms and Conditions" (which may or may not include a force majeure clause).
When operating within the marine economy, given the unpredictable nature of Scotland's waters and weather, having a formal written contract to rely on would always be preferable.
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Our team provides advice and assistance on all matters relating to commercial contracts and have considerable experience drafting bespoke agreements. If you want to ensure that your commercial contracts are watertight, please get in touch with a member of our team.