In the context of the COVID-19 pandemic, the courts have seen a rise in the number of cases alleging “force majeure” or “superior force” clauses as a defense. As this has become more common, we should examine the situations surrounding these cases and explain the underlying causes.
Where one person fails to honour their contractual obligations, they are liable for the injury caused to their co-contracting party and must make reparations for it [1]. For example, consider a web development company, BrightWeb Creations, that fails to deliver a website on the agreed date, causing financial losses to the client’s e-commerce business, StellarGoods. BrightWeb Creations would be liable for the damages incurred and would have to provide compensation to StellarGoods. However, BrightWeb Creations, could release themselves from liability by demonstrating they were unable to honour their contractual obligations due to a superior force [2].
A recent situation in which the courts have experienced a rise in the number of cases alleging superior force is in the context of the COVID-19 pandemic. As a response to the pandemic, we now see contracts with superior force clauses that account for COVID-19. With the rise in litigation surrounding the pandemic and the change in contract drafting, it has become vital to understand force majeure in the context of Quebec’s civil law.
Force Majeure in the Civil Code of Quebec
In Quebec, section 1470 of the Civil Code of Quebec (the “C.C.Q.”), states:
“a person may free himself from his liability for injury caused to another by proving that the injury results from superior force, unless he has undertaken to make reparation for it.
Superior force is an unforeseeable and irresistible event, including external causes with the same characteristics”.
The three essential elements of superior force are (i) an unforeseeable event, (ii) an irresistible event, and (iii) external causes.
Unforeseeable Event
Unforeseeability is analyzed at the time the contract is formed. The question to ask here is whether the event was foreseeable at the time of the contract. If the event is COVID-19, then was the pandemic a foreseeable event at the time the parties concluded their contract?
Imagine BrightWeb Creations had almost completed StellarGoods e-commerce website when a rare astronomical event, a comet shower, disrupted local internet services for an unforeseeable amount of time. This event, completely unpredictable at the time the contract was concluded, rendered BrightWeb unable to upload the final website files, causing a delay in the project’s delivery.
Irresistible Event
Irresistible means the performance of the obligation was prevented absolutely and permanently. This excludes situations where performance could have been delayed without causing injury.
In another scenario, BrightWeb found itself in the midst of an irresistible event. A severe and sudden cyberattack targeted several servers in their hosting facility, affecting their systems and backup data. Despite all security measures in place, the attack was highly sophisticated and unstoppable, leading to the temporary loss of crucial project files and causing an unavoidable delay that caused injury to StellarGoods e-commerce business.
External Causes
An external cause is beyond the parties' or their mandataries. The alleged superior force event must not have been the fault of one of the parties or their mandataries.
Finally, another situation using BrightWeb is where they faced external causes beyond their control when a massive city-wide power outage occurred due to a major electrical fire at the local substation. This external cause disrupted their ability to access their computers, servers, and project data. Consequently, the web development company couldn't work on the website for an extended period, causing a delay in the project's completion.
Effect of Force Majeure
Superior force allows a party to free themselves from the performance of their obligation, and avoid the liability incurred by the injury to the co-contracting party. For BrightWeb we provided three separate scenarios as a way to show the various potential occurrences of force majeure. However, to successfully meet the test for superior force, each scenario would have to prove the three elements: unforeseeable, irresistible, and external causes.
Examples of Force Majeure Events
Some events previously considered superior force events include ice storms, earthquakes, hurricanes, war, or a state of emergency declared by the government. However, each of the conditions of force majeure must be analyzed based on their own merits, and no circumstances are the same.
Force Majeure Clauses in Contracts
The force majeure doctrine applies to both contractual and extracontractual situations. A force majeure clause doesn't need to exist in a contract as a prerequisite to its use. However, through their contract, parties may define situations they will consider a force majeure event. On the other hand, it is also possible to contract that a party’s obligations will continue despite the existence of a superior force event. In this case, this defense will no longer be available to the contracting party.
Conclusion
Grasping the concept of force majeure in Quebec civil law is vital especially in the wake of the COVID-19 pandemic. Remember, the party invoking force majeure has the burden of proving the three essential elements of unforeseeability, irresistibility, and external causes. Parties can release themselves from liability by meeting the burden of proof. While force majeure clauses in contracts can define specific events, they’re not always necessary.
For comprehensive legal guidance and to ensure your contracts are robust in the face of unforeseen events, consult with our law firm today. Contact us now for a consultation.
This blog post is not legal advice and is for general informational purposes only. Always speak with a lawyer before acting on any of the information contained herein.
[1] section 1458 CCQ
[2] section 1470 para 1 CCQ