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Things that shouldn’t count as force majeure by jigordon
January 5, 2010, 9:32 am
Filed under: contract terms, force majeure, law

Define the term “force majeure” for me.  Looking online, there are several:

  • it’s French for “superior force”
  • act of God: a natural and unavoidable catastrophe that interrupts the expected course of events  (WordNet)
  • a common clause in contract which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties (Wikipedia)
  • an unavoidable catastrophe (Wiktionary)

So what’s the common theme?  It’s the ability to AVOID a particular set of actions.  In other words, force majeure events are those which are unavoidable or unforeseeable.  If you only click one link above, do the one for Wikipedia and learn about the three-part test in French and international law for what constitutes a force majure event.  UCC Section 2-615, “Excuse by Failure of Presupposed Conditions” and the Restatement of Contracts 2d, Section 261 “Excused Nonperformance” also include multi-part tests.

But we’ve gotten lax in contract drafting in the US and folks have assumed that force majeure clauses (those that allow a party to not perform as a result of one of these types of events) were continually written with actual unavoidable events listed.  In fact, almost every force majeure clause I now see contains at least one, if not more, of the following things as force majeure events:

  • strikes/labor disputes
  • telecommunication difficulties
  • supply chain problems
  • terrorism and war (sometimes even phrased as “acts of the public enemy”)
  • riots
  • government regulation

Unfortunately, these are not force majeure events.  Why?  Because most of them can be planned for… and even something like terrorism and war (especially when they’re happening right now), should be planned for.  If you can plan for them, they’re foreseeable.  And if they’re foreseeable, they’re not unforeseeable.  See where I’m going with this?  🙂

So when you strike these items out of the force majure event clause, you’re going to get push back because people don’t want to be responsible for planning in all eventualities.  You’re not asking them to do it.  Rather, you’re asking that contract performance not be hindered or halted as a result of things that are capable of having a backup plan.  Which means that you could, if you were so inclined, draft language which allows for these items to be force majeure only if they were part of a backup plan that still was impeded.  In other words, you’ll give these items force majure weight if the party claiming force majeure can show that they had planned for them properly, but still ran into trouble.

Oh, and by the way, force majeure also isn’t one-size-fits-all.  Would you EVER list telecommunication difficulties in a contract with your telephone service provider?  Additionally, force majeure protections should benefit BOTH parties, even if one party’s sole obligation is to cut a check.  Payment can be made quite difficult by floods and hurricanes, just ask the good people in Louisiana, Alabama and Mississippi about business deals during Katrina.

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Updating Contract Language for the 21st Century by jigordon
November 23, 2009, 9:32 am
Filed under: confidentiality, contract terms, force majeure, governing law, information security, law

Holly Towle wrote an excellent article on the boilerplate contract language issues that might now exist in your contract language.  Read the article… consider the issues… review your templates.  Make some changes.  Of course, you can always just call me and I’d be happy to review your contracts for you.  😉

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This Week on The Web 2009-10-11 by jigordon
October 11, 2009, 9:32 am
Filed under: communication, contract management, contract terms, contract types, current events, fun, law, negotiation, risk matrix, SL Ed Series, TWoTW

These are the discussions that happened around the web this week – maybe you already read about them, maybe you need to again.  Come join the party on twitter (follow me here and you’ll participate in the conversation live.)

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.

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Announcing the Software Licensing Education Series on DVD by jigordon
October 5, 2009, 9:32 am
Filed under: contract management, contract terms, SL Ed Series

The saying goes that you don’t appreciate someone else until you’ve walked a mile in their shoes. The same can be said for appreciating process. While it is still extremely easy to create new digital works in almost any medium, converting them – especially for sale – is still challenging.

So it gives me great pleasure to announce the availability of the Software Licensing Education Series on DVD.  While previously offered here as a digital download, I wanted to make these videos available to a much broader audience.  Teaming with CreateSpace has given me that opportunity.

The Software Licensing Education Series is video-based software licensing training.  Designed with even a novice in mind, the Series progressively moves from basic topics to those requiring more experience and background.  Built around a college-courseware format (100, 200, 300, 400 and 500 levels are available), the Software Licensing Education Series provides instruction in bite size pieces for optimal learning.

Pricing for the DVD set is $750 – significantly cheaper than the cost of most software licensing-related conferences and packed with way more instructional time (551 minutes… more than 9 hours of material).  The DVDs may be used in a business setting, too… and are re-usable over and over as needed.

Buy the Software Licensing Education Series now via DVD or digital download and start saving money and reducing risk today!  Oh, and get a 10% discount through the month of October on the DVD using discount code: 89YYH47X

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This Week on The Web 2009-08-23 by jigordon
August 23, 2009, 9:32 am
Filed under: book, contract management, contract terms, law, source code, trust, TWoTW

The things that happened around the web this week – maybe you already read about them, maybe you need to again:

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This Week on The Web 2009-08-09 by jigordon
August 9, 2009, 9:32 am
Filed under: contract management, contract terms, current events, law, negotiation, TWoTW

The things that happened around the web this week – maybe you already read about them, maybe you need to again:

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This Week on the Web 2009-08-02 by jigordon
August 2, 2009, 9:32 am
Filed under: contract management, contract terms, contract types, negotiation, TWoTW
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This Week on The Web for 2009-07-26 by jigordon
July 26, 2009, 7:32 am
Filed under: communication, contract management, contract terms, current events, employment, EULA, Five Fundamental Skills, risk matrix, TWoTW
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TWoTW for July 12, 2009 by jigordon
July 12, 2009, 9:32 am
Filed under: contract format, contract management, contract terms, current events, law, negotiation

This Week on The Web.  Interesting articles, stories and thoughts from around the web this past week that are related to contracts, licensing, negotiation or law:

AdamsDrafting

Corporate Insurance Blog

E-Sourcing Forum

Firstdrafter

Madisonian

Settle It Now Negotiation Blog

The (non)billable Hour

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ALI Approves the Principles of the Law of Software Contracts by jigordon
June 19, 2009, 9:32 pm
Filed under: contract terms, governing law, law

As I mentioned a few weeks ago and now recently reported by Concurring Opinions, the American Law Institute recently approved the final version of the Principles of the Law of Software Contracts.

If any particular state adopts these rules, I will probably recommend what commenter Sean Hogle recommended – the addition of yet another disclaimer.

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