BOOK REVIEW
FORCE MAJEURE AND FRUSTRATION IN COMMERCIAL CONTRACTS
By Ben Symons
Contributor: Joseph Dalby SC
ISBN 978 1 52651 711 1
Bloomsbury Professional Law
www.bloomsburyprofessionallaw.com
AN EXCELLENT RESTATEMENT OF FORCE MAJEURE AND FRUSTRATION PERTINENT TO THE POST-COVID ERA - COMMERCIAL PRACTITIONERS TAKE NOTE
An appreciation by Elizabeth Robson Taylor MA of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator
Here’s an interesting book -- thorough, erudite, and easy to read too. It covers an area of law about which not a lot has been written, largely due in past years, to the relative scarcity of case law in relation to frustration and force majeure. In other words, the latter referring to superior force -- floods, fires, storms, earthquakes and other ‘Acts of God’ which can and do frustrate the performance of a contract or act as a defence in matters of tortious liability.
But as author, Ben Symons, points out, ‘the recent Covid-19 pandemic triggered the issuance of a multitude of force majeure notices and initiated a great deal of interest in force majeure clauses.’
Interestingly, the book deals succinctly with the definitions of ‘pandemic’, epidemic’ and ‘Act of God’ -- definitions, which by their nature, are by no means precise and therefore arguable, debatable, and controversial. Also do note the definitions, (or often, discussions) of what is meant by other relevant terms such as ‘riot’, ‘piracy,’ ‘embargo’, ‘war’ and ‘extensive military mobilisation’. And with reference to recent tragic events in Ukraine, the distinction between these latter two definitions is certainly debatable in 2022.
It is important to remember here that force majeure clauses are more common in such industries as oil and gas, nuclear power and shipping, mostly litigated in the courts of England and Wales, as most contracts specify that they are indeed subject to the law of England Wales, whether or not the parties involved have any connection with this jurisdiction. Even so, says the author, England and Wales is the jurisdiction in which disputes in relation to force majeure clauses are more likely to arise.
But note also, that international jurisprudence from Australia, Canada, Singapore, and Hong Kong in relation to force majeure is also examined, as are other key issues such as causation, notice, mitigation and of course, much more. The coverage of this subject is nothing if not thorough -- and for busy practitioners, the book is easily navigable, thanks to the detailed table of contents and index and the tables of cases and statutes.
For commercial practitioners, advisers, and law students alike -- this eminently useful text from publishers Bloomsbury Professional provides carefully researched and authoritative coverage of both force majeure and frustration, their definition and their application to commercial contracts. It is the most recent statement concerning this subject area currently available. Do check out the online service which Bloomsbury now offer for this publication.
The date of publication of this hardback edition is cited as 23rd June 2022. The law is stated as December 2021.
