Rethinking the “Force Majeure” Clause in Light of the Coronavirus Pandemic

| July 21, 2020

by Matthew Petra

“Let us hope that a kind Providence will put a speedy end to the acts of God under which we have been laboring.” Peter De Vries

If you scroll through a Commercial Contract provided by Florida Realtors, you will likely find a “Force Majeure” paragraph. In fact, many purchase and sale agreements, loan documents, and commercial leases contain Force Majeure language; but, it is rare to see Force Majeure language that directly references a pandemic or epidemic. You might see a reference to moratorium, civil commotion, governmental action or inaction, all of which might relate to a pandemic. However, you will usually see a reference to “acts of God” within your particular “Force Majeure” clause or paragraph.

This necessitates the question, what is an “act of God” exactly? Generically, an “act of God” can be defined as “… an unusual and extraordinary manifestation of the forces of nature that it could not under normal conditions have been anticipated or expected. Yet it need not be the sole, greatest, or harshest violent act ever experienced. And an act of God does not necessarily mean an operation of natural forces so violent and unexpected that no human foresight or skill could possibly have prevented its effect. … Conversely, where conditions are predictable and not without precedent, they may not constitute acts of God. …[i]”. Additionally, the Florida Statutes provide a definition of an “act of God” for us. Section 377.371(3)(c), F.S. (2019), states, “An act of God, which means an unforeseeable act exclusively occasioned by the violence of nature without the interference of any human agency.” This definition also appears in §376.12(7)(c), F.S. (2019).

So, does a pandemic fall under the definition of an “act of God” in the state of Florida? The state of Florida lacks a robust enough body of case law to sufficiently address this question; but, given our current climate, a court might be inclined to define the current Coronavirus Pandemic as an “act of God.” With that said, in the future, there is no reason that your contracts or agreements should not have epidemics or pandemics listed within your “Force Majeure” clauses or paragraphs, even if the inclusion of these terms is redundant. If the Coronavirus Pandemic decides to revisit us, hopefully future contracts or agreements will better highlight the consequences of a pandemic or epidemic on those contracts or agreements. As with many other topics, when dealing with “Force Majeure”, a careful review of your document with your attorney is worth your while.

[i] 1 Am. Jur. 2d Act of God § 8.

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