Rethinking negligence in force majeure clauses: risk allocation, fairness and certainty in commercial contracts

Abstract

Explores the extent to which events caused by a contracting party's own negligence could come within the ambit of a force majeure clause. Distinguishes between force majeure and exemption clauses and examines whether events covered by force majeure clauses must be without a party's control. Criticises the principles set out in Canada Steamship Lines Ltd v The King and suggests that the ordinary rules of contractual construction should be used instead. Considers whether force majeure clauses are subject to a reasonableness requirement. Suggests an approach to dealing with all of these issues.