Legally speaking with Bob Mionske: Major force a minor deal

Hi, Bob,I signed a contract with a cycling-related manufacturer to endorse their product. I believe in the product and have used it successfully for several years. At the end of the nine-page agreement there was a clause called Force Majeure. This clause contains language about fires, floods, wars, etc. What’s up with this, and how does it apply to the contract? Thanks in advance,B.D. Dear B.D.,I suspect the Force Majeure was included as simply as boilerplate. In law, the term “boilerplate” refers to standard language contained in a legal document that is identical to language used in

By Bob Mionske

Hi, Bob,
I signed a contract with a cycling-related manufacturer to endorse their product. I believe in the product and have used it successfully for several years. At the end of the nine-page agreement there was a clause called Force Majeure. This clause contains language about fires, floods, wars, etc. What’s up with this, and how does it apply to the contract?

Thanks in advance,
B.D.

Dear B.D.,
I suspect the Force Majeure was included as simply as boilerplate. In law, the term “boilerplate” refers to standard language contained in a legal document that is identical to language used in other documents. It may be helpful to think of boilerplate language as a kind of template. Drafters of legal documents commonly make use of such templates when drafting a contract without considering whether each and every part of the template is applicable to the particular agreement.

“Force Majeure” refers to an event or effect that cannot be reasonably anticipated or controlled. A Force Majeure clause is often contained in long-term contracts between parties in which delivery of supplies or products is crucial. This type of clause seeks to excuse a party from performing on a contract for various events that are beyond the control of the parties. Examples of Force Majeure that can excuse delay in performance in a contract can be natural (fires, floods, earthquakes, etc.) or human-caused (riots, acts of foreign or domestic governments, war, etc.).

Force Majeure clauses were very common when courts would deny relief except for literal impossibility of performance (meaning the court would hold the parties to the terms of the agreement unless exceptions were explicitly listed). Today, the Uniform Commercial Code (UCC sec. 2-615) and the Restatement of Contracts 2D (sec.261) specifically address those situations contemplated by a Force Majeure clause.

Nevertheless, Force Majeure clauses continue to appear in contracts, such as yours, where they hardly seem applicable. Furthermore, under the interpretive rule of ejusdem generis, it is possible for a court to exclude a particular type of supervening event as an excuse because it is unlike the events specifically listed in the Force Majeure clause, so including such a clause can actually work against a party. To avoid such a result, the drafter of such a clause should consider adding a saving phrase like “including but not limited to,” in advance of the examples of events listed as being Force Majeure.

The Force Majeure clause is only one very small part of your contract and will only become important if one of the listed “events” stops either party (you or the company) from performing the duties listed in the contract. For example, if the company cannot supply product to you because of a natural disaster or a war, they will be excused from such performance until the intervening event ceases to hinder performance. Likewise, should you be unable to fulfill your part of the agreement – due to, say, a meteor strike or college kids gone wild celebrating a national championship – you can rely on the Force Majeure clause to excuse your non-performance under the contract.

Good luck,
Bob


Now read the fine print:


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

If you have a cycling-related legal question, please send it to info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

Important notice:
The information provided in the “Legally speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.