The Doctrine of Force Majeure under the Law of Contract in Pakistan: A Critical Exposition

Abstract

This paper discusses what is the meaning of force majeure; what is its extent and scope; what is its effect; the onus to prove force majeure is on who; can a contract hit by force majeure become void; is it incorporated within our law; what can be included in force majeure and what cannot be included in it; The methodology used in this paper is doctrinal. The main findings of this paper are that force majeure means any superior or irresistible force that causes an event to occur due to an Act of God. Examples can be of tsunamis, floods, earthquakes etc. Hence any natural disaster that strikes is an Act of God. It is incorporated within the doctrine of frustration which in turn is incorporated within Section 56 of the Act and as well Section 32 of the Act. the act becoming physically impossible to perform has two things in mind, one is it becoming physically impossible to perform due to unforeseen circumstances caused by human intervention, such as mobs, strikes, protests and more, while the second thing is the act becoming physically impossible to perform due to unforeseen circumstances caused by an Act of God, such as snowstorms, thunderstorms and it also includes natural disasters such as earthquakes, floods, tsunamis etc. An act of God that is a natural disaster or is at such an extent that it causes a lot of damage, the same only needs to be proved by providing evidence that the subject-matter was damaged by the act of God and it caused this amount of damage. And of course, anyone who claims that an act of God occurred must also prove the same by providing sufficient and substantial evidence that it had occurred. A force majeure event absolves a party from liability for the non-performance of a contract due to a supervening impossibility, when a dispute arises. contract hit by force majeure becomes null and void. Although, stipulations could be added in such a case where the parties would stipulate that the contract would be put on hold till the resolution of the force majeure event. Some parties could also stipulate that certain obligations can be suspended where force majeure occurs.