What is Force Majeure?

A force majeure refers to the occurrence of an event which is outside the reasonable control of a party and which prevents that party from performing its obligations under a contract.

Therefore, “La force majeure est un cas d'exonération de la responsabilité.”¹

The “test” for force majeure is an objective test which requires the satisfaction of two criteria²:

(i) Imprévisible (dans la survenance de l’évènement)

Whether the event would normally be unpredictable for a reasonable person?

This criteria will be taken into account as from the conclusion of the contract.

(ii) Irrésistible (dans ses effets)

Whether it is so overpowering as to go beyond the means of humans to resist or manage its consequences?

This criterion will be taken into account as from the non-performance of the obligations.

Can COVID-19 be considered as an event of force majeure ?

An illness is not necessarily nor automatically a case of force majeure. If the illness is one which is known, as well as its risks of spread and health effects, and that cures exist for same, it cannot be invoked as a reason for the inexecution of one’s obligations under a contract as the said illness would be considered as one being prévisible and résistible.

The situation is likely to be different for COVID-19 whereby many unknowns about the illness remain, requiring authorities and organisations over the world to exercise utmost caution by taking drastic and unprecedented measures.

The measures taken by authorities and organisations over the world and the speed at which those measures are being taken, and which result in limiting and/or restricting and/or prohibiting transactions and/or displacement of people are circumstances which are likely to constitute a force majeure since those are likely to be measures which are imprévisible and irresistible.

As at the date of writing, France has declared COVID-19 as force majeure event for Companies, which will prevent the application of penalties in case of inexecution of contractual obligations.

There has been no such declaration in Mauritius so far but the local and global situation as at date might lead contractual parties to claim force majeure to release themselves from their obligations under the contract.

However, there should exist a link between the execution of an obligation under a contract and the impossibility of carrying out the execution of this obligation. Therefore, special attention and care should be given to the chronology of the events linked to COVID-19 i.e. the coming into force of the measures which had an impact on the execution of the obligations under the contract.

What are the remedies in the event you are temporarily or definitively prevented from executing your contractual obligations?

Force majeure releases the contracting party from their obligation and the other contracting party cannot claim damages for breach of contract, even if there are no specific provisions in the Contract in relation to force majeure.

When there is only a partial impossibility for the non-execution of one’s obligation, the contracting party is released only from the obligations concerned by the force majeure, not from all of their obligations.

If non-execution of one’s obligation is temporary, the execution of the obligation is suspended. The execution of one’s obligation should resume as soon as possible when the force majeure ceases.

However, if the delay due to the force majeure renders the contract obsolete or if the delay becomes permanent, the contracting party is released from their obligations and the other contracting party cannot claim damages for breach of contract.

Can you prevent the suspension or the termination of your Contract in the event of force majeure?

As the exoneration of liability in the event of force majeure is provided by the law, the only way to prevent its application is to contractually provide for a restriction or limitation of the consequences of a force majeure event.

If there exists a clause of Force Majeure in your Contract, attention should be paid to what it provides for. Even if we may consider that COVID-19 measures taken constitute a force majeure, “la liberté contractuelle des parties” may restrict and/or limit the consequences of a force majeure.

If there are no provisions of this nature in your Contract, you will have to ensure that the contracting party is effectively incapable to perform its contractual obligations. Otherwise, it will be prevented from suspending or terminating the Contract or it will be liable of damages if it suspends or terminates the Contract without cause.

1. Art. 1147 of the Code Civil Mauricien, «le débiteur est condamné s’il y a lieu, au paiement de dommages et intérêts, soit à raison de l’inexécution de l’obligation, soit à raison du retard dans l’exécution, toutes les fois qu’il ne justifie pas que l’inexécution provient d’une cause étrangère qui ne peut lui être imputéem, encore qu’il n’y ait aucune mauvaise foi de sa part.»
   
   Art. 1148 of the Code Civil Mauricien, «il n’y a lieu à aucun dommages et intérêts lorsque, par suite d’une force majeure ou d’un cas fortuit, le débiteur a été empêché de donner ou de faire ce à quoi il était obligé, ou a fait ce qui lui était interdit.»
   
   
2. General Construction Co Ltd v Ibrahim Cassim & Co Ltd 
3. 2011 SCJ 19