Ending a Construction Contract - Scottish Construction Contracts - page 232

9.3 Force majeure
9.3.1 General
As frustration cannot apply where the parties to a contract have had regard to the pos-
sibility of a particular event and made provision for it in their contract, difficulties of
interpretation may arise in determining whether frustration has occurred. To address
this problem many contracts expressly provide for events that might ordinarily be
sufficient to frustrate the contract. Such clauses are known as force majeure clauses.
he term force majeure is believed to originate from France and in particular the
Code of Napoleon. It has no particular technical meaning in Scotland. The term cov-
ers events, such as war, epidemics and strikes, beyond the control of the party to the
contract who seeks to rely upon the clause. It is also said to encompass any direct leg-
islative or administrative interference, see Lebeaupin v. Richard Crispin & Co . (1920).
By its very nature a force majeure clausewillhavetobereadcarefullyinconjunction
with the remaining terms of the contract to establish, precisely, its scope.
9.3.2 Force majeure under the SBC and the SBC/DB
By virtue of clause 2.29.14 of the SBC and clause 2.26.14 of the SBC/DB, force majeure
constitutes a relevant event which may give rise to an extension of time. Civil commo-
tion and the use or threat of terrorism and/or the activities of the relevant authorities
in dealing with such events or threat are separate relevant events under clause 2.29.11
of the SBC and clause 2.26.10 of the SBC/DB, though were they not specifically pro-
vided for, they might otherwise, in any event, fall within the ambit of a force majeure
clause.
Clause 8.11.1.1 of both the SBC and the SBC/DB provides that if, before practi-
cal completion of the works, force majeure causes the carrying out of the whole or
substantially the whole of the uncompleted works to be suspended for a continu-
ous period of time specified in the Contract Particulars, either the Employer or the
Contractor is, in defined circumstances, entitled to terminate the employment of the
Contractor. Termination is considered in Section 9.4.
9.3.3 Force majeure under the NEC3
Although the words force majeure are not used, clause 19 (Prevention) covers
situations that would normally be within the scope of, in defined circumstances, a
force majeure clause. It covers an event which stops the Contractor from completing
the works or stops the Contractor completing the works by the date shown on the
Accepted Programme and which neither party could prevent and which an experi-
enced contractor would have judged at the point of entering into the contract to have
such a small chance of occurring that it would have been unreasonable for him to
have allowed for it. If an event occurs which falls within this clause, the Project Man-
ager gives an instruction to the Contractor stating how he is to deal with the event.