CLAUSE: Does force majeure cover the prospect of war?

Here's an example of a typical force majeure clause:

“Either party's performance under this agreement is subject to acts of God, war (declared or undeclared), government regulation, terrorism, disaster, strikes, civil disorder, curtailment of transportation facilities, or similar occurrence beyond the party's control, making it impossible, illegal, or commercially impracticable for one or both parties to perform its obligations under this agreement, in whole or in part. Either party may terminate this agreement without liability for any one or more of such reasons upon written notice to the other party within ten (10) days of such occurrence or receipt of notice of any of the above occurrences.”

EFFECT: Get specific

If the U.S. goes to war with Iraq, will meeting professionals be able to terminate their meetings contracts? In the event of war, the legal question would become: Did the act of “war (declared or undeclared)” render the group's performance “impossible, illegal, or commercially impracticable?”In general, the act of war would have to have a direct and immediate effect on the meeting to be used as a reason for full or partial termination of the contract without liability. If, for example, the government grounds airline operations due to safety concerns and attendees cannot fly in to a meeting, the group would be able to terminate the contract without liability. If transportation has not been interrupted (or it is a meeting to which attendees drive), the attendees' desire not to leave home may not, by itself, be a valid reason for termination without liability.

Planners should be sure that all contracts have a termination/force majeure clause that specifically mentions war. For contracts not yet signed, planners may want to consider modifying the force majeure clause to include the unequivocal right to terminate without liability if the United States goes to war or there is an act of aggression with Iraq or another hostile nation. If the meeting venue will agree to it, this specific language is probably a planner's best protection, as long as the terms “war,” “hostile nation,” “acts of aggression,” or any other added language are defined clearly. Legal counsel can advise planners about specific contract modification.

Tyra W. Hilliard, Esq., CMP (tyra@mindspring.com) is a meetings industry attorney and Assistant Professor of Event and Meeting Management at The George Washington University in Washington, D.C.