Force majeure

Force majeure is the situation in which a failure to perform cannot be attributed to the debtor, because it is not their fault and is not for their account under statute, a legal act or generally accepted standards. The creditor can then claim no damages.

Legal basis

Article 6:75 of the Dutch Civil Code contains the standard. Force majeure only excludes damages; under Article 6:265 the creditor retains the right to rescind, even where the failure is not attributable. Article 6:74 ties damages to attributability, and Article 6:78 gives a right to any benefit the debtor obtained through the event. The bar is high in the case law: financial inability is almost always for the debtor’s account, and a failing supplier or a strike within the debtor’s own business rarely amounts to force majeure. For international sales, Article 79 of the Vienna Sales Convention contains its own comparable regime.

How it works in practice

Because the statutory test is strict, contracts almost always contain their own force majeure clause with a list of events, a notification duty, a suspension period and a right to terminate if the situation persists. A good clause also allocates the costs during suspension. Without a clause the statutory rule applies and the outcome is uncertain.

Where it goes wrong

Parties invoke force majeure without notifying the event within the contractual period, so the defence lapses. A second error is a clause listing events without regulating the consequences. Third, it is forgotten that the counterparty may rescind despite force majeure, so the contract ends anyway.