India: Force Majeure Clauses In Contracts

Last Updated: 19 September 2018
Article by S.S. Rana & Co. Advocates

The advent of civilization in human life gave birth to various forms of interactions amongst the individuals. Numerous aspirations have led to passion for monetary superiority and the art of profit making thereby giving rise to business activities. People carry out their business with one another in the form of sale and purchase which may be either for goods or services. In order to maintain cordial relations amongst themselves and ensuring smooth functioning of their business, parties often enter into contracts which bind them on agreed mutual terms and conditions.

Composition of Contracts

The contracts between the parties comprise of various clauses which regulate their responsibilities and conduct for the situations which they can anticipate. However, there arise circumstances which make the performance of the contract impossible. In case such supervening events arise for any reasons being beyond the control of a party, such party may be exempted from performing its due obligations while the contract stands frustrated.

Frustration of Contract

As per Section 56 of the Indian Contract Act, 1872, an agreement to do an impossible act is described as being void. The said provision also relieves a party from the discharge of their duties in event of an intervening act which renders the performance of the contract impossible or unlawful.

Grounds for Frustration

The law recognizes the applicability of the Doctrine of Frustration on the following grounds:

  • Destruction of Subject matter- Where the contract cannot be fulfilled owing to the failure of the essential element to continue in the state which it was expected to be at the time of formation of the contract. Destruction of the music hall (Taylor v. Caldwell1), loss of crops (Howell v. Coupland2)have been identified as some of such situations.
  • Change of circumstances- Where the circumstances change post entering into the contract making the performance of the same impossible. Explosion of ship boiler preventing further journey to transport the goods (Joseph Steamline Ltd. v. Imperial Smelting Corp.3 is one example.
  • Non-occurrence of contemplated event- Where the value of the performance is destroyed due to non-occurrence of the contemplated event which lays the foundation of the contract thus making its performance impossible. Ex. In case of Krell v. Henry4 where room was to be hired only for the purpose of viewing coronation ceremony which got cancelled.
  • Death or incapacity of a party- Where the contract can no longer be performed due to the death or incapacity like illness (Robinson v. Davison5) the lead pianist could not perform being ill) of one of the contracting parties.
  • Government or Legislative intervention- Where new Government/ Legislative policies prevent the performance of the contract, e.g. ban on sale/purchase of specific products fundamental to the contract (Boothalinga Agencies v. V.T.C. Poriaswami6).
  • Intervention of war- Where outbreak of war makes it impossible to fulfil the contractual obligations (A. F. Ferguson & Co. v. Lalit Mohan Ghosh7)

Force Majeure

Force Majeure meaning "superior force" refers to such situations which obstruct the continuation or lawful existence of a contract amidst the parties. The inclusion of such clause in the contract allows a party to suspend or terminate their duties and obligations in case of occurrence of an act which may be classified as Force Majeure.

Usually parties mutually decide over the list of events to be categorized under this clause which include acts of war, riots, fire, flood, hurricane, earthquake, explosion, strikes, lockouts, slowdowns, prolonged shortage of supplies, governmental action prohibiting or impeding any party from performing its respective obligations under the contract causing its frustration.

In the news8

Recently, Reliance Industries, one of the leading business groups of India has announced a Force Majeure on gasoline exports from its Jamnagar site although the exact reason for the same has not yet May kindly see the been disclosed. In case of establishment of the Force Majeure, Reliance Industries would be able to avoid their duties as stated in their respective contracts with their clients.

Footnotes

1 [QB (1863) 3 B & S 826]

2 [(1876) 1 QBD 258])

3 [(1941) 2 All ER 165]) 4 [(1903) 2 KB 740]

5 [(1871) LR 6 Exch. 269]

6 [AIR 1969 SC 110]

7 [AIR 1954 Pat. 596]

8 https://www.businesstoday.in/current/corporate/reliance‐industries‐force‐majeure‐on‐gasoline‐jamnagarplant/story/281334.html  and https://timesofindia.indiatimes.com/business/india‐business/reliance‐halts‐gasolineshipments‐from‐jamnagar‐site‐causing‐fuel‐margins‐to‐spike/articleshow/65423138.cms

For further information please contact at S.S Rana & Co. email: info@ssrana.in or call at (+91- 11 4012 3000). Our website can be accessed at www.ssrana.in

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
S.S. Rana & Co. Advocates
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
S.S. Rana & Co. Advocates
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions