The world can fall into shambles quite easily, when a disaster strikes it. The natural catastrophes, conflicts and now the prevailing pandemic can have enduring as well as long lasting effects on the structure and order that help in the smooth running of our economy. Globally over 212 countries and territories of the world have been impacted by the novel corona virus, officially named COVID-19. The businesses around the world have come to a shuddering halt and are left to count the costs due to the spread of the virus across the globe. Major economies have been pushed to the brink due to the lockdowns that remain the only way to slowdown the transmission and spread of the deadly virus. The coronavirus which has engulfed nearly the entire world carries severe consequences for the population and has inevitably affected contractual obligations both nationally and internationally.
With the precarious proliferation of COVID-19 and the resultant lockdown giving rise to a situation many companies and individuals having contractual obligations may not have anticipated or prepared for, whether they can invoke “Force Majeure” to escape their obligations remains a pivotal question. Companies affected by the deadly outbreak of the virus are taking note of the contract terms so as to minimize their financial losses as the killer virus is forcing cancellations and closures. Business contracts usually incorporate “Force Majeure” protections that absolve the parties from obligations that go unfulfilled due to acts of God or other events beyond their control.
II. “Force Majeure” and its scope: one size does not fit all
“Force Majeure” is a French term for “greater force” or “superior force”. It is concomitant with the theory of act of God and both the concepts are intertwined. In Peters, Flamman & Co v Kokstad Municipality, Solomon JA determined that due to the supervening circumstances, performance of the contract was objectively impossible (casus fortuitus) and therefore, the contract should be terminated. Hence, the court opined that “if a person is prevented from performing his contract by Vis Major or Casus Fortuitus…he is discharged from liability”. The words “Force Majeure”, “Casus Fortuitus” and “Vis Major” are utilized as interchangeable expressions. The contracts including the provisions of “Force Majeure” tend to clarify qualifying events. The happenings in order to constitute “Force Majeure” must be unanticipated/unforeseeable, external to the parties of the contract and inevitable. Depending on the jurisdiction, these concepts are interpreted and applied differently. The chronicle of the events to be classified under the above clause which embraces acts of war, conflicts, riots, flood, fire, hurricane, explosion, earthquake, strikes, lockouts, prolonged dearth of supplies, governmental actions interdicting or holding back any part from discharging its respective contractual obligations causing it to be frustrated, are mutually decided over by the parties to the contract. This concept emanates from French Civil law and is a standard accepted in many jurisdictions that obtain their legal system from the Napoleonic Code. The “Force Majeure” clauses are admissible however, must be further explicit about the events that would activate the clause, in those of the United Kingdom and the United States where the system of Common Law exists.
Amid the catastrophes and chaos, the clause tends to be a saving grace for some individuals and companies. In order to ascertain what is covered and what is not covered, it is the task of the lawyers to comb through the contracts meticulously. If the clauses are invoked, they can liberate the companies or other parties to a contract from commitments either temporarily or permanently, without leading to breach of their agreement. It is pertinent to take note that a performance by a contracting party is not excused entirely nevertheless, is only suspended for the time span of the “ Force Majeure”, by the clause containing the provisions of “Force Majeure”. But if the “Force Majeure” clause provides that where the “greater force” which the contracting parties could not have contemplated at the time of the acceptance of the contract, continues for more than a stipulated time period then either party to the contract may at its own option terminate the contract without any monetary repercussion on either side. Frustration is an English contract law doctrine which acts as an instrument to set aside contractual obligations where an unanticipated event either renders the obligations impossible or radically alters the party’s principal purpose for entering into the contract. A fundamental case relating to frustration doctrine with regard to contract law is the case of Taylor v Caldwell. Section 56 of the Indian Contract Act, 1872 provides the provision of “Force Majeure”. The sine qua non for the invocation of the section is that there should be an existence of a valid contract between the parties; the contract is yet to be carried out and after the contract is entered into it becomes impossible to be performed due to fact or law. The Doctrine of frustration cannot be invoked in case of commercial hardship and cannot be exerted as a device to elude a bad bargain. Moreover, this doctrine is an inbuilt factor in Section 56. In India another facet of frustration is Section 32 of the Indian Contract Act, 1872, as any contingency becoming non-viable to perform results in dissolution of the contract. In the case of Ganga Saran v Ram Charan, the Supreme Court held that; “It seems necessary for us to emphasize that so far as the courts in this country are concerned, they must look primarily to the law as embodied in Sections 32 and Section 56 of the Indian Contract Act, 1872”. Hence it was concluded that both the sections should be read together for the purpose of Section 56.
The laws play a very revolutionary and a pivotal role in the journey towards an independent and self-reliant India. The current COVID-19 outbreak has challenged and has severely affected the human civilization making it difficult to sustain the scope of livelihood world-wide. The onset of the pandemic in our country has proven to be a humanitarian as well as an economic crisis. The lingering uncertainty as to the performance of contracts has accelerated the breaches of contracts by the parties and has led to major disruptions to life and business. The major issue which arises here is whether a party to a contract whose performance or non-performance of the contractual obligations emerging due to lockdowns can be held liable under the contract law or whether the “Force Majeure” clause is available to the parties? In the following paper, the development of this area in law in the present day has been traced and analysed. All the commercial activities on a global scale being disrupted by the outburst of the virus has challenged the contracting parties’ ability to discharge their legal obligations. But the frustration principles and the “Force Majeure”clauses provide relief to the contracting parties by protecting them from incurring liability upon non-performance. This clause intends to absolve a party to the contract and envisages to waive its obligations absolutely or for the time being suspends it temporarily where occurrence of exceptional events makes the performance of the contract radically different or impossible or also for reasons that cannot be construed to be a breach of contract by the defaulting party. In the case of Phillips P.R. Core Inc v Tradax Petroleum Limited, it was laid down that “in general, the basic purpose of the clause is to relieve a party from its contractual duties when a force beyond its control has prevented its performance or when the very purpose of the contract itself has been frustrated.” Doctrine of frustration under Common law is an agreement to do an impossible act. If a “Force Majeure” incident or phenomenon eventuates dehors the contract, then it is dealt under Section 56 of the Act with a rule of positive law. It is determined under Chapter III of the Act which deals with contingent contracts and more particularly Section 32 of the Act. In Satyabrata Ghose v Mugneeram Bangur &Co and Another, the Hon’ble bench observed the following- “the doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act.” Generally, the “Force Majeure” clauses have been narrowly construed by the Indian courts. The courts may not take into account the events as triggering consequences of “Force Majeure”unless such event falls within the scope and ambit of “Force Majeure”clause. A frustration of contract takes place when an event supervenes without the default of other party or for which no sufficient provision is made in the contract, where the outstanding contractual rights undergo a significant change in nature from what the contracting parties could have reasonably foreseen in the hour of its execution that it would be unfair to hold them to the literal sense of its stipulations in new set of conditions and in such vase the law declares the parties to be discharged from further performances. In the case of Naihati Jute Mills Ltd v Hyaliram Jagannath, the court referring to the English law on frustration concluded that merely because the circumstances in which the contract was made was altered, does not frustrate the contract. The basic intention of the “Force Majeure” clause is to extricate the party affected from the consequences of something over which the party has no control. The courts in the case of Tennants (Lancashire) Ltd v G.S Wilson and Co Ltd held that the relevant triggering event must prevent or restraint performance i.e. it is to be demonstrated by the affected parties that performance is impossible legally or physically and not just difficult or unprofitable. Thus “Force Majeure” is the negotiated term of the contract and its successful claim will depend upon exact language contained in the provisions of the contract and the relevant facts and circumstances of the affected party.
It is an essential requirement that the affected party must notify about the occurrence of a “Force Majeure”even to the other party within a specific time in order to get a relief. Moreover, the affected party is required to update the other party during the subsistence of “Force Majeure” event with periodic notices stating the actions being taken to redress and set right the event. The party claiming relief also has the burden to prove the impracticability or impossibility of the performance of contract under an uncertain “Force Majeure” event. The affected party has to prove that it could not reasonably have foreseen the occurrence of the event at the time of making the contract nor it could have circumvented or overcome its consequences. The courts in such situations, could investigate whether the COVID-19 outbreak was the direct cause of the non-performance or if any alternative or mitigative step could have been undertaken by the performing party to fulfil its obligation and such party is not just using the clause as an excuse to absolve itself of its contractual obligations. In various judgements, the Hon’ble Supreme Court of our country in the past has examined numerous events in the contracts which embodied a “Force Majeure” provision in regards to performance of contract; price escalation and cost; extension of bank guarantee, etc. There are cases where it has been provided that normally a “Force Majeure” clause will not be interpreted to apply to a contract which provides for a substitute/alternative mode of performance. It is comprehensible that an onerous method of performance by itself would not add up to a frustrating event. It is opined that a mere rise in price that renders the performance of the contract more expensive does not constitute frustration of the same. The Apex Court referred to a foreign case Itek Corporation v The First National Bank of Boston in the case of Hindustan Steel Works Construction Ltd v Tarapore & Co & others. In that case the performance of the prime contract had become impossible because of occurrence of a “Force Majeure”event. Even though it was an event which was subsequent of the execution of the contract, the court granted injunction on the ground that the assertions of irreparable harm were genuine and non-speculative and the plaintiff had no adequate remedy at law and would have suffered irreparable harm if his plea for relief was not accorded. In Parsa Kente Collieries Limited v Rajasthan Rajya Vidyut Utpadan Nigam Limited, there was a distinct clause as per the agreement regarding escalation of price each year per the formula stated in the agreement which was meant to commence from the day of commencement. However due to “Force Majeure”, the date of commencement was extended as there was a delay of 639 days while obtaining environmental and forest clearance. Passing an award, the arbitrator stated that though the date of supply was prolonged, in the relevant clauses of the agreement there was no corresponding agreement in regards to price escalation. There was absence of special agreement wherein there would be supply of coal in the absence of any price escalation where commencement date was prolonged due to “Force Majeure”. Therefore, in the above case, the contention of the arbitrator was upheld by the Apex Court of India. In the case of Mahtma Gandhi Sahakra Sakkare Karkhane v National Heavy Engg. Coop. Ltd and Ors, the Hon’ble court observed that “if the period of agreement is extended due to Force Majeure or sellers not fulfilling their obligations under the agreement or for any other reasons whatsoever, sellers shall have such guarantees extended up to the corresponding extended period and failure of the sellers to do so will amount to a breach of the contract and in no case the extension of the period of the contract shall be construed as waiver of the right of the purchasers to enforce the guarantee.”
The Delhi High Court in relation to the invocation of the “Force Majeure” clause while deciding the case of Halliburton Offshore Services Inc v Vedanta Limited and Anr, relied upon U.P. Cooperative Federation Ltd which held that “in order to restrain the operation either of irrevocable letter of credit of confirmed letter of credit or bank guarantee, there should be serious dispute and there should be good prima facie case of fraud and special equities in the form of preventing irretrievable injustice between the parties.” In the former case, it was opined by the court that due to the sudden imposition of the lockdown, the interest of justice would sustain as special equities to prevent irretrievable justice to the petitioner and therefore, an ad-interim injunction order was passed which restrained invocation of bank guarantee till which the date of lockdown stood extended. After due consideration, a liberal view was taken by the court and it was upheld that the outbreak of COVID-19 and the subsequent lockdown resulting from the increase of the disease were in prima facie “Force Majeure” events which was beyond the comprehension of any contracting party.
- What if there is no “FORCE MAJEURE” Clause?
Due to the onset of COVID-19 pandemic, our country has undergone an unprecedented catastrophic disruption in the economic sphere where all businesses and trade have come to a shuddering halt. This outbreak has been recognized as a natural calamity by the Government of India and the courts have come to a conclusion that a “Force Majeure”clause can be invoked wherever it is considered appropriate. Since the many commercial contracts’ performance has been postponed or rescinded. Nevertheless, a common question which arises in this scenario is what if there is an absence of “Force Majeure” clause in a contract?
In such cases where agreements/contracts do not contain “Force Majeure” clause, then the common law concept i.e. Doctrine of frustration advances to the forefront where unforeseen events happen, explicitly provided in the Indian Contracts Act 1872 under Section 56. To avail the doctrine, one has to prove that the performance has become impossible/unfeasible and such condition was not under control of the party to the contract. Such issue was settled in Syed Khurseed Ali v State of Orissa and Anr, where both parties to the contract had agreed to the terms of contract in absence of any “Force Majeure” clause under the contract. Further the performance was rendered unlawful. The court opined that the petitioner stood at a position to not pay for any damage nor for forfeiture of the amount received by the respondent. Thus, the contract was declared frustrated. It was stated that it was quite evident from the facts of the case that the performance of the agreement entered into by the parties was rendered impossible as well as unlawful. It was held that “ Section 56 of the Indian Contracts Act 1872 as quoted above, does not cover every case of which, neither of the parties is responsible. Giving regard to the nature and circumstances of the transaction and implied terms, no doubt is cast in the present case that the performance of the contract on the part of the petitioner became an impossibility and such impossibility can be brought into the fold of Force Majeure.” At these times of uncertainty, through the doctrine of frustration, the principles of fairness, justice and equity are not compromised.
III. Indian court’s interpretation while invoking “force majeure” vis-a-vis taking shelter under “force majeure” clause in covid-19 situation
Over the past months the COVID-19 outbreak has pervaded almost every nation around the globe. The entire scope, impact and the long term implications of the pandemic are yet to be fathom out, but the escalating number of the confirmed cases is perhaps the easiest to calculate whereas on the economic standpoint which is speculated to stumble will only be revealed with the passage of time. The Ministry of Finance notification dated on 19th February 2020 stated that any disruption of the supply chains due to coronavirus will be covered in the “Force Majeure” clause and should be considered as a case of natural calamity, wherever considered appropriate. The memo further stated that the “Force Majeure” clause does not excuse a party’s non-performance entirely, but only suspends it for the duration of the “Force Majeure.”
The “Force Majeure” clause could led to a mammoth number of litigation in the future. Whether invocation of the “Force Majeure” clause will absolve all the contractual obligation is a relevant question which should be carefully read upon. The answer to this question cannot be definite. The “Force Majeure” clause can give relief to the contractual obligation in some narrow calibrated areas and for that some principles have to be looked upon. The question is whether COVID-19 can become the reason that will extend to “impossibility” of performance of contractual obligation remains moot, as it largely depends on the facts, circumstances and issues involved of each case where the repercussions of COVID-19 is to be examined on the subject matter of the contract.
Indian Courts have not directly ruled on whether an epidemic like COVID-19 is an “Act of God” unlike the Courts of United States of America and United Kingdom who have explicitly held that “Act of God” includes epidemic. Nevertheless, there are many Indian judgements which can be referred to derive the support of the argument. More often it has been seen that the Indian courts are reluctant while invoking the “Force Majeure” clause because they do not want it to be an escape route for a party from executing his contractual obligations. Instead they look forward to maintain the sanctity of the contract, provided if the adverse situation becomes so fundamental and directly destroys the subject-matter of a contract in that the performance becomes impossible which was not foreseeable and was beyond the control of the parties- establishing such ‘impossibility’ then only relief can be given. In the case of Satyabrata Ghose vs Mugneeram Bangur, the Supreme Court stated that “The relief is given by the court on the ground of subsequent impossibility when it finds that the whole purpose or basis of a contract was frustrated by the intrusion or occurrence of an unexpected event or change of circumstances which was beyond what was contemplated by the parties at the time when they entered into the agreement.” In the same case, the Supreme Court gave a wide interpretation of the word “impossible” by stating “This much is clear that the word ‘impossible’ has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view and if an untoward event or change of circumstances totally upset the very foundation upon which the parties rested their bargain, it can very well be said that the promisor found it impossible to do the act which he promised to do”.
In the latest case of Standard Retail Pvt Ltd and Ors V M/S G.S Global Corp &Ors, the Bomaby High Court dealt with the plea of “Force Majeure” and frustration of contract due to the COVID-19 Pandemic as brought up by a group of Indian Steel Importers, who pleaded for seeking relief from negotiation/encashment of letters of credits in favour of the South Korean Exporters. In this instant case, the petitioners relying upon Section 56 of the Indian Contract Act, invoked “Force Majeure” Clause in the contracts which they had entered into with the respondents, claiming with the onset of the pandemic and the lockdown as announced by the Central and State Governments, the contract that was entered into should be terminated by reason of unforeseeability, frustration, impossibility and impracticability. In this case, Article 11 of the aforesaid contract incorporated the “Force Majeure” clause which expressly included epidemics as one of the events. Whereas this clause only exempted the suppliers from the non performance of the contract and did not include the importers under its ambit. The suppliers/exporters complied and fulfilled their obligations, but it was argued by the importers that due to the nation-wide lockdown, stringent rules on travels, the imported goods could not be collected as a result of which the contracts with the exporters shall be declared terminated .
The Court held that the petitioners are not entitled to any ad interim reliefs by stating that Letters of Credits are independent transactions and does not have any nexus with respect to the underlying disputes between the parties involved. The Court also gave the ratio that distribution of steel comes under the ambit of “essential services” during the lockdown period and no restrictions was imposed on its movement. Furthermore, it was observed that “lockdown is temporary in nature, for a limited period of time, and therefore, cannot be relied upon for the purpose of frustration of contract.” With the aforementioned reasons, the Court refused to grant any interim reliefs.
The case of Energy Watchdog vs Central Electricity Regulatory gave excellent interpretation of “Force Majeure” clauses in India. In this case the court held that “We are, therefore, of the view that neither was the fundamental basis of the contract dislodged nor was any frustrating event, except for a rise in the price of coal, excluded by clause 12.4, pointed out. Alternative modes of performance were available, albeit at a higher price. This does not lead to the contract, as a whole, being frustrated.”Thus, it has been observed that mere prevalence of expenses or delay or onerousness is not sufficient to invoke “Force Majeure”. This interpretation would have materiality while analysing the contractual obligations in the context of COVID-19. These are not hard and fast rules and varies from cases to cases on the basis of facts and contractual provisions along with the impossibility and impracticability in performance of the contracts. Specifically in the light of COVID-19, its aftermath effect which can lead to change in market conditions and economic declivity can be a parameter which the Courts have to keep in mind.
A. Impact on RERA Registered Projects: The pandemic situation has taken a massive hit upon all the industries, the businesses are struck hard, the markets are facing the repercussions by witnessing a record low and COVID-19 has not left the real estate sector from its garb. One of the paramount industries that oils the wheels for smooth running of the national economy halted as almost 1.3 billion people went under quarantine since 21st March 2020. The real estate promoters, along with their contractual obligations vis-a-vis their allottees, they are also bound by the statutory obligations established by the Real Estate (Regulation and Development) Act, 2016 (Act) which are further supervised by the Real Estate Regulatory Authority of each state.Section 6 of the Act has envisaged the “Force Majeure” condition and states that the “registration granted may be extended by the Authority on an application made by the promoter in that regard due to Force Majeure. The Explanation provided to this section states that “the expression Force Majeure shall mean a case of war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature affecting the regular development of the real estate project.” As per the notification of the Ministry of Finance dated February 19, 2020, COVID-19 has been considered as a natural calamity. Section 6 of the Act cannot be invoked automatically; rather the promoter has to move an application in that regard to the Authority for the extension. There have been many notifications laid down by the different states in this lockdown and made many allowances in the real estate sector.
If there is a “Force Majeure” clause in the contracts, then promoter has the discretion to move an application for the extension. If the contract does not have the “Force Majeure” clause, then in all such cases, if promoter fails to handover the possession of the property to the allottee, then allottee has the power to withdraw from the project in accordance with Section 18 of the Act and the doctrine of Frustration embodied under section 56 can be applied.
But, in the present scenario, a party may not terminate the contract and would rather ask for temporary relief from its liabilities as mentioned in the contract.
- Impact on Tenancy Agreements:
The pandemic situation along with the lockdown has created ripples of shockwaves across the country. To curtail the spread of the disease, the entire nation was urged to stay indoors, thus, people have not been able to go to work, many have lost their jobs, corporates have imposed salary cuts, self-employed people have massively faced the repercussions. As a result of which, the ability of the people to spend money has reduced to a large extent. This also had a conspicuous effect on landlord-tenant relations. Tenants are trying to seek a waiver of rent by invoking the doctrine of “Force Majeure” as a legal shield to protect against the non-fulfillment of their contractual obligations.
In the recent case, Ramanand & Ors. v. Dr Girish Soni & Anr , Honorable Delhi High Court had laid down the specifications to be considered while deciding the requests for the remission or suspension of rent. The criterion laid down by the court are based on the “nature of the nature of property, financial strata of the parties, the amount of rent of the property, any contractual clause that allows non- payment of rent and legal protection under government’s order.”
These are the parameters that the court has taken into consideration for deciding of granting relief of termination or suspension of contract and payment of rent respectively. In the given case, the Delhi High Court has explained that the relief of termination, remission or any other relief in this regard would be implemented differently on the basis of the classification of the contracts. The court has applied section 32 and section 56 of Contract Act, 1882 and section 108(B)(e) of Transfer of Property Act in order to ascertain these grounds in the contracts of tenancy.
The decision of the High Court clarifies that suspension is not an inherent right of the tenant rather it is subjective to the circumstances and the grounds laid down by the Honorable Delhi High Court. So, it cannot be concluded that all the tenancy agreements can come under “Force Majeure” clause, and it is still under a dicey situation subjective to certain conditions.
IV. Conclusion and last thought
Prima facie it could be argued that pandemic like COVID-19 falls within the scope of ‘Act of God’ and easily satisfies the test of unforeseeability, but from the aforesaid case laws and courts judgements it can be construed that seeking support on the “Force Majeure” clause cannot relieve the parties from contractual obligations. If there is availability of alternate modes of performing the contractual obligations, the “Force Majeure” clause will not be applicable. By applying common sense, business prudence and modern jurisprudence it is more preferable that the performance of the contractual obligations should be treated as suspended for some time and the parties involved should be requested to bear their expenses during such extended time period, as neither of them are in wrong for the onset of such a pandemic situation. In order to maintain good business affinity and to avoid unpleasant lengthy litigation, the parties could continue the contract by amending or novating the contract itself and consensually agreeing with the same.
Many other aspects should be considered before invoking “Force Majeure” clause by looking into the nature of the contract, the contractual obligations with which the parties entered into the contract, the time period when the contract was formed, the performance of the obligations prior to the declaration of the pandemic, altogether whether the changed circumstances destroys the basis of the contract and its object has to be carefully scrutinised. As stated earlier, the probability of the Courts holding that the contracts have become frustrated during the pandemic is still very remote as in most of the cases it may appear that the contracts have become onerous but yet not impossible. COVID-19 can be a turning point with respect to the existing legal provisions and Indian legal jurisprudence encompassing the principles of “Force Majeure” and “Frustration of Contract”.
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 Id.at 3
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 Id.at 19
 Id. At 28
 Id.at 7
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 Id.at 7
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