CC LEGAL
Can a force majeure clause be invoked in view of COVID-19? By Dr Gianluca Cappitta
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force majeure clause is commonly inserted in contracts as a means to excuse the performance of a contract on the basis of a defined set of circumstances, which could include but are not limited to wars, acts of God such as floods, earthquakes, etc. A force majeure clause is therefore invoked by parties to be released from executing their obligations. For the purposes of this article, the obligations which shall be assessed will be limited to contractual obligations and obligations of debtors and lessees.
What constitutes force majeure? Our law does not give a definition of what constitutes force majeure, but throughout the Civil Code one will find a number of references to the terms force majeure, ‘fortuitous event’ and ‘irresistible force’. Therefore, to better understand what
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constitutes a force majeure, an analysis of Court judgements is required. In the judgements of Alfred Zarb et v. Mondial Travel Agency (Court of Appeal, 30th January 2009) and Mapfre Middlesea p.l.c. v. Carmelo Saliba (Small Claims Tribunal, 9th January 2019), the Courts had concluded that the terms force majeure and ‘irresistible force’ are used interchangeably. The Maltese Courts have provided much needed guidance to establish a set of principles of the force majeure defence against liability, as well as to define the notion of an ‘irresistible force’ or a ‘fortuitous event’ and the circumstances giving rise thereto. The judgement of George Farrugia et. v. Pacifika Masini noe (Civil Court, First Hall, 7th January 2008) observed that for the purposes of force majeure, the following elements must result ‘simultaneously’.
a) The event must be dictated by an irresistible force in that it subjects the party in question to the impossibility of fulfilling his obligations; b) The event must be unpredictable; c) The event must be external; d) The event must not be able to be foreseen by a bonus paterfamilias, i.e. by the reasonable man.
Is the COVID-19 pandemic a fortuitous event? Considering the above elements, it could be safely concluded that the pandemic may not fully meet these criteria for the outbreak to be considered as a fortuitous event. It is not COVID-19 in and of itself which is hindering people from honouring their obligations but rather, it is the effects of legislative intervention in an effort to curb the pandemic over the past months which
SEPTEMBER 2020