Force Majeure in UK Law

Lastly, if the notice provision is only an innominate term, then I find it difficult to see when the innocent party could allege it had suffered additional damage as a result of not being told promptly of the force majeure event other than the very damages that it would wish to recover for the first party's failure to perform the contract at all. These factors would all lead me to conclude that the parties intended the notice provision to be a condition precedent.

Firstly, it seems to me that the word "seller" or "sellers" means and can only mean the selling party in the relevant contract containing the force majeure clause, and does not refer to sellers further up the chain. Mr Havelock-Allan accepted that this must be so in that part of the clause dealing with "breakdown or injury to ships, pipelines, machinery or other facilities of the seller or those from whom the seller obtained products purchased hereunder.

In my opinion the clause may very appropriately and should be regarded as such an intermediate term: to do so would recognise that while in many, possibly most, instances, breach of it can adequately be sanctioned by damages, cases may exist in which, in fairness to the buyer, it would be proper to treat the cancellation as not having effect. On the other hand, always so to treat it may often be unfair to the seller, and unnecessarily rigid.

I think that any reasonable sellers would rightly have inferred that the buyers were accepting the notice as a valid and effective notice under clause 22 save that the reference to 500 tons should be altered to 280 tons. To make an unequivocal representation or waiver it is not necessary for the buyers to say, "We hereby waive it".

First, there must be interference in the execution of a contract. The interference is not confined to the procurement of a breach of contract. It extends to a case where a third person prevents or hinders one party from performing his contract, even though it be not a breach. Second, the interference must be deliberate. The person must know of the contract or, at any rate, turn a blind eye to it and intend to interfere with it, see Emerald Construction Co. v. Lothian, (1966, 1 W.L.R. 691).

The contrary approach, which to my mind is correct, involves no rule or generality at all, save for the advice to look, in the case of an infant, at the position of the family unit of which he is part. This does not involve a rule for dependent habitual residence. It merely asserts the possibility that habitual residence may exist in a State which is the home of the family unit of which the infant is part, and is where he would be but for force majeure.

What the “radically different” test, however, does not in itself tell us is that the doctrine is one of justice, as has been repeatedly affirmed on the highest authority. Ultimately the application of the test cannot safely be performed without the consequences of the decision, one way or the other, being measured against the demands of justice. Part of that calculation is the consideration that the frustration of a contract may well mean that the contractual allocation of risk is reversed.