You can’t always predict when storms or unforeseen events will affect your meetings, but you can protect yourself with a goodclause.
Force majeure, meaning a superior or irresistible power, is the name of aprovision that essentially allows one or both parties to call a halt to their obligations due to circumstances (like severe weather) or unforeseen forces beyond anyone’s control.
You might find this clause buried in the boilerplate at the end of a contract, but it should never be overlooked, says meetings industry attorney James Goldberg, principal, Goldberg and Associates, Washington, D.C.
Always include these three conditions in a force majeure provision:
1. Allow for partial performance. Often, force majeure clauses written by hoteliers are all-or-nothing—terminate the contract or not. “But maybe you don’t want to terminate,” says Goldberg.
Take the circumstances surrounding Hurricane Sandy, which hit the East Coast in October 2012. Say there was a meeting in Chicago in the days after the hurricane that 30 percent of attendees couldn’t make because airports were shut down and people were without power. The organization might not want to cancel the meeting, but it would want to be covered for partial performance since severe weather precluded a significant number of attendees from getting to the meeting.
Another sticky situation would be a meeting held a week or two after a disaster like Sandy. In this case, the planner would have to make a call about whether or not to cancel the meeting one or two weeks beforehand, not knowing if power and transportation would be restored.
The force majeure clause may not cover a meeting canceled because of concerns that are currently unknown. In such a case, it’s best to discuss the matter with the hotel and reach an agreement on how to proceed.
2.Don’t obsess over what the force majeure clause should cover. Fire, flood, storm, insurrection, terrorism, fear of terrorism, acts of God, pestilence, famine—the list of events covered under force majeure could go on and on. What’s more important is to tack on the phrase “…or other situations beyond the control of the parties.” That way, the organization may be covered for other situations that hamper performance even if they are not specifically listed.
3.Broaden the definition. Most force majeure clauses refer to situations beyond the control of the parties that make performance “illegal or impossible.” That’s a very strict standard, says Goldberg. For example, if all the airports in New York were closed, it technically wouldn’t be impossible to attend a meeting because attendees could drive or take a train. But it would be very difficult. He recommends adding the words “commercially impracticable”—legalese for very difficult—to “illegal or impossible.”
This article was first published in December 2012.