Force Majeure & Frustration: Why COVID-19 is a Wake-Up Call


Corporate / Commercial Law

Force Majeure & Frustration: Why COVID-19 is a Wake-Up Call

How confident are you that your existing or contemplated contracts will be enforceable in light of unexpected events such as the COVID-19 pandemic? This article is a timely deep dive into the history and development of the common law precedents guiding the interpretation and enforceability of force majeure clauses.

Shakvaan Wijetunga

Virtual Intern

A condensed version of this article is due to be published in the December Xmas edition of Legal Business World.


What is a Force Majeure clause?

No Force Majeure clause?  Use the Doctrine of Frustration

Under What Circumstances Can a Contract be said to have been Frustrated?

Tempering the Uncertainty Surrounding the Invocation of Frustration

General Comments on Force Majeure clauses in Light of the Pandemic

Interpreting Force Majeure clauses

Force Majeure and COVID-19

How to Draft a Good Force Majeure clause?

Editor’s Note:  Take into account Murphy’s Law!

Comprehensive Insurance Clause

What is a Force Majeure clause?

A force majeure clause is a method of allocating the risk of a disruptive event. It is a broad catch-all provision whereby the parties list categories or specific instances of otherwise frustrating events, together with the party or parties to bear the risk of the event occurring.

The clause can also grant options to vary, suspend or terminate the contract to one or more of the parties. [1]

Force majeure clauses form part of a contract’s express terms, subject to the conventional methods of construction. Absent a force majeure clause, it is unlikely a contract’s commercial purpose would suggest that such a provision is so apparent that it goes without saying [2], meaning a court is likely to refuse to imply it.

No Force Majeure clause? Use the Doctrine of Frustration

A party can invoke the common law doctrine of frustration where the sort of event triggering a force majeure clause arises, and the contract makes no provision for the course of conduct to follow.

The doctrine of frustration discharges parties from the performance of an obligation when an unforeseen event (also known as an “act of God”) presents itself without default of either party.

The contract then becomes either incapable of being performed or its essence radically different from that which was agreed. [3]

While the modern approach to frustration is a question of construction, [4] meaning any contract can be frustrated, the courts’ reluctance to absolve parties of their obligations originated in the 17th century.

The thinking is that parties who have formed a contract to bind themselves should not be too readily discharged from their duties because they failed to provide against an accident. [5]

Under What Circumstances Can a Contract be said to have been Frustrated?

From the literature, it is evident that an infinite number of events can lead to the frustration of a contract. However, to ascertain the threshold to be met before parties to a deal can declare themselves discharged from their obligations, it would be useful to address how a court approaches some of the most frequent frustrating events.

The clearest example of a frustrating event is when the subject matter of a contract is destroyed or ceases to exist.

Frustration could also occur if the subject matter is requisitioned [6] or rendered unavailable for all or “the major part” of the contract. [7]

For frustration to discharge the parties from their obligations, the threshold is that of impossibility. An event which renders performance merely more difficult does not meet this threshold, and the parties will still be obligated to perform their duties. [8]

An example of performance being made more difficult is if a canal is closed and a shipment under a contract for the sale of goods must take a different, longer route. [9]

The legal outcome is that, even if a significant disrupting event arises, the courts will attempt to find a way in which the parties’ promises can be fulfilled, notwithstanding substantial losses of time or resources.

The party seeking to invoke the doctrine of frustration carries the burden of proof. However, this burden requires a high order of certainty in a legal landscape replete with nuance and subtle distinction. Impossibility is proven where the real commercial purpose of the contract has disappeared, rendering performance pointless, as would be the case, for example, when a party hires an apartment from which to watch a cancelled procession. [10] In contrast, merely disappointed expectations, for example, when the government prohibits the illumination of neon signs, would not frustrate contracts for the hire of those signs. [11]

Frustration caused by delay creates a grey area. The suspension must be so extensive that it radically alters the performance of the contract and can justly be described as unreasonable and, therefore, frustrating. [12] It must not be a delay caused by one of the parties, in which case it will be a breach or at least repudiation.

Supervening illegality of the main object of a contract renders its lawful performance impossible. An example is an order prohibiting the sale and importation of timber and an agreement for the purchase of pine wood. [13] An outbreak of war is another kind of supervening illegality. Contracts with the enemy, for example, would arise when the destination for delivery becomes occupied by enemy forces. [14] However, the complexity lies in that it is not the outbreak of war per se that automatically frustrates all contracts, but specific circumstances unique to a military conflict which would render performance impossible.

Examples include the use of waterways becoming too dangerous for vessels, [15] or government orders requiring work going to the essence of the contract to cease. [16] It is acts done in furtherance of war that would frustrate a contract.

Tempering the Uncertainty Surrounding the Invocation of Frustration

From the above examples, it is clear that relying on the doctrine of frustration to absolve parties of obligations when circumstances become difficult may not always be secure or fair.

The event relied upon must have been unforeseen by the parties. [17] However, many conflicting statements exist as to the degree to which the event was not – and could not have been – foreseen.

What remains unclear is whether it is the class of event or the specific event that must have been unforeseen. [18]

With the doctrine of frustration mostly being an exercise in gap-filling, if a provision dealing with frustration appears in the contract, there would be no room for the doctrine to operate in an area already occupied by express terms. These express terms are force majeure clauses.

General Comments on Force Majeure clauses in Light of the Pandemic

Extracted from the above examples of traditional approaches to frustration is the acknowledgement that a pandemic, specifically, is rare.

Parties are unlikely to foresee a pandemic and take into account when providing for interruptions to their contract.

Not only is a pandemic an example of an interruption susceptible of being overlooked, but more generally, provisions outlining the procedure in the face of a frustrating event would avoid the need for litigation in such a circumstance.

It is an appropriate time for parties to reassess the safeguards in place to protect themselves from misfortune, and not only ensure the security of their positions during the current affliction but also in preparation for any future disaster.

Interpreting Force Majeure clauses

Discussion of the ideal substance of force majeure clauses ought to account for the common law principles of their interpretation.

A comprehensive statement of the law regarding the construction and burden of proof for each party for force majeure clauses comes from the Privy Council on an appeal from the Court of Appeal of Hong Kong. [19]

The force majeure clause from that case appears in the following terms:

“Force majeure: Should [the sellers] fail to deliver the contracted goods or effect the shipment in time by reason of war, flood, fire, storm, heavy snow or any other causes beyond their control, the time of shipment might be duly extended, or alternatively a part/whole of the contract might be cancelled, but [the sellers have] to furnish [the buyers] with a certificate issued by China Council for the Promotion of International Trade ('C.C.P.I.T.’) or an independent and competent Chinese authority attesting such event or events.” [20]

Note that the sellers (the appellants) are the party seeking to avoid liability. The force majeure was a severe drought which devastated the area from which the cotton to be sold to the buyers (the respondents) originated.

The construction relied upon by the PrivyCouncil required there to exist a tripartite state of affairs to activate the clause’s operation.

The three limbs are:

1. that there, in fact, had been a stipulated force majeure event at the relevant time;

2. that this event had adversely affected their (i.e. the sellers’) ability to supply the goods; and

3. that the sellers could not overcome these adverse effects by obtaining the goods from another source (other than the source provided for in the contract) while still matching the contractual requirements. [21]

From the above 3-part test, it is clear that the process of investigation in dispute resolution or litigation is the same as for frustration. To be able to say performance (as envisaged by the agreement) has been rendered impossible is the only available conclusion.

Zooming in more closely on the clause, thePrivy Council deemed the focus of construction as being on the requirement fora certificate to be issued. [22] It is this stipulation which distinguishes the situation created by a force majeure clause from the case created by reliance on frustration.  

While frustration brings a measure of uncertainty to the state of contractual obligations, force majeure clauses can clarify and bring specificity and certainty to the parties’ obligations.   Here, the requirement for a certificate has been set as the minimum hurdle to clear before the force majeure clause can operate.

It is this sort of clarity and unambiguously required conduct that explains why we prefer to detail express terms dealing with frustration events. Nevertheless, as the following discussion will show, a requirement of this nature can still be stimulated with more clarity than itwas in the matter before the Privy Council.

When being asked to determine compliance with such minimum thresholds, it appears the courts shall be satisfied with a small amount of proof. However, regarding the certificate requirement, the limit is not so low that it may be met simply with the production of a vague document and nothing else. [23]

The certificate requirement involved a twofold task for the sellers:

1. To prove that it was a stipulated event which had caused them to fail to perform their duties; and

2. To produce a certificate meeting the required specifications.

With the choice of three possible constructions of what the twofold task entailed, the Privy Council chose the one placing the lightest burden on the sellers. [24] The Privy Council even noted that no case law existed to aid in this choice, making this case a leading and landmark authority on construing force majeure clauses.

The sellers, as per the Privy Council’s construction, were only required to issue a document certifying the occurrence of a force majeure event (i.e. the first limb of the tripartite state of affairs set out above). [25] Accordingly, the other two rejected constructions would have required, on the one hand, certification of all three of those components, and on the other, certification of two parts (permitting the omission of impossibility).

As a matter of construction, the PrivyCouncil found that the express language of the force majeure clause merely required the certificate, as a document, to be added to the tripartite state of affairs. [26] In other words, the tripartite state of affairs did not need to both exist in fact and repeated in the certificate. To require the certificate to attest to all three limbs would be of no practical value and would entail a semi-judicial investigation. [27]

Attesting to not only the existence of force majeure but also to its effects on a transaction is an inquiry into complex facts that would need to be conducted again at the litigation stage, even if appropriately held by the independent authority. [28] In short, only the force majeure needs to be identified by the certificate. The parties do not intend for the certificate to be a substitute for proof of the force majeure.

Where the certificate attesting to all three limbs to the tripartite state of affairs would have practical value, although not being a requirement to satisfy the force majeure clause, is in the event of a challenge to the party relying on it. [29] To have a comprehensive certificate would be a useful piece of evidence allaying suspicions that the relying party has fabricated excuses to avoid performing its contractual duties.

Furthermore, an independent authority would be in a better position than an entity after the fact to conclude a bona fide, contemporaneous and accurate assessment of the conditions and force majeure at the appropriate time and place.

The Privy Council’s policy finding is tothe need to draft force majeure clauses in clear language. It would have been possible for the one in question to have required that the certificate establish all or part of the requisite tripartite state of affairs, not just the existence of force majeure.

Less authoritative than the Privy Council, the Ontario Court ofAppeal dealt with the question of whether a particular force majeure clause refers to occurrences suffered only by one party or to those born by each party. [30] The business relationship between the parties was one of the supply and distribution of natural gas to the buyer’s customers (under separate agreements).

This case concerns a poorly drafted force majeure clause containing latent ambiguity. Notwithstanding, the Court did not need recourse to extrinsic evidence.

The provision reads as follows:

XI Force Majeure
In the event of either Buyer or Seller being rendered unable, wholly or in part, by force majeure to perform or comply with any obligation or condition hereof or any gas sales contract into which these General Terms and Conditions are incorporated, such party shall give notice and full particulars of such force majeure in writing or by telegraph to the other party as soon as possible after the occurrence of the cause relied on, and the obligations of the party giving such notice, other than obligations to make payments of money then due, so far as they are affected by such force majeure, shall be suspended during the continuance of any inability so caused but for no longer period, and such cause shall as far as possible be remedied with all reasonable dispatch.
The term “force majeure” as used herein shall mean acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, wars, blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts, arrests and restraints of governments and people, civil disturbances, explosions, breakage or accident to machinery or lines of pipe, the necessity for making repairs to or alterations of machinery or lines of pipe, freezing of wells or lines of pipe, temporary failure of gas supply, inability to obtain materials, supplies, permits or labour, any laws, orders, rules, regulations, acts or restraints of any governmental body or authority, civil or military, any act or omission(including failure to deliver gas) of a supplier of gas to, or a transporter of gas to or for, Seller which is excused by any event or occurrence of the character herein defined as constituting force majeure, any act or omission by parties not controlled by the party having the difficulty and any other similar causes not within the control of the party claiming suspension and which by the exercise of due diligence such party is unable to prevent or overcome.”

A force majeure clause need not be long to be adequate.

The alleged force majeure, in this case, was a series of strikes and an explosion within the space of 3 years. All of which affected some of the buyer’s large customers (rather than the buyer itself). These events led to the buyer selling less gas to its customers during those years. Incidentally, the word “strike”was given a broad meaning to include labour disputes.

The buyer, in this case, is the respondent and the seller the appellant. In its reasoning, the Court affirms that a clause which is merely difficult to interpret is not necessarily ambiguous.

Latent ambiguity emanates from the clause. Whilst each word is to be given its dictionary meaning; it is unclear whether the events occur solely on the seller’s part, or refer to events that also happen on the buyer’s part.

The parties agreed to break this clause down into four segments for construction:

1. The occurrences rendering the buyer or seller unable, wholly or in part, to perform an obligation;

2. The failure of a supplier or transporter to deliver gas to the seller;

3. An act or omission by parties not controlled by the party having the difficulty; and

4. Other similar causes not within the control or scope of prevention of the party claiming suspension.

The ambiguity lies in the second segment.

It expressly excludes the seller from liability if met with force majeure, but no equivalent appears excluding the buyer from same.

The Court noted that such a specific clause if appearing for one party should also appear for the other unless the parties’ specific intention were only to endow the seller with that protection.

Acknowledging that without gas from the seller/supplier, the buyer cannot fulfil its contracts with its customers, creates an assumption that an express exclusion of the seller from liability should extend to the buyer.

Given the nature of the relationship between the buyer and seller, the seller has no control over the contracts the buyer enters. The buyer, to protect itself against misfortune, has other courses of action available to it.Some of these courses of action include applying to the public body controlling it to increase the rates charged to customers, or including in its contracts with those customers mandatory minimum payments, despite any force majeure.

The extractable principle is that the application of a force majeure clause must be limited to force majeure besetting the parties to the contract, in the absence of an express widening of the scope of its application.

Force majeure on the system of the buyer’s customers is not equal to force majeure on the buyer.

The express and unambiguous terms of the other three segments were applied.

To reconcile the approaches taken by the Privy Council and OntarioCourt of Appeal. When a force majeure clause makes express provisions, a court will give effect to those express provisions, even if they may, prima facie, seem to be overlooking one party’s susceptibility to risk.

Therefore, if the clause permits a minimum tender in satisfaction of its threshold or permits only one party to benefit from the exclusion of liability, a court will give full weight to that permission. The purpose behind force majeure clauses being to clarify obligations in times of difficulty can never override their express words.

Accordingly, it is essential to clearly explain all risk allocation, exclusion clauses and requisite thresholds to give effect to the parties’ intentions.

Force Majeure and COVID-19

While some case law refers to the effects of COVID-19, few courts have dealt directly with the pandemic’s impact on an industry, apart from Canada’s Federal Court of Appeal. [31] The factual matrix of that case involves the CanadianTransportation Agency making public statements on its website, seeking to strike a balance between airline customer protection and airlines’ operational realities.

The statements suggest it would be reasonable for airlines to provide affected passengers with vouchers or credits for future travel rather than reimbursement. [32] Air Passenger Rights, an advocacy group, asserts that the CTA’s statements are likely to mislead passengers concerning their rights. [33]

COVID-19 is acknowledged undisputedly as a frustrating event and force majeure. [34]

The Court dismissed APR’s assertions. They accorded a level of leeway to non-binding administrative decisions in their approach to reaching pandemic-related solutions to stressful situations. Provided those solutions, such as vouchers, do not expire in an unreasonably short time. [35]

Furthermore, the Court conceded that these administrative decisions might have the effect of potential harm to customers, for example, who are not seeking credits but monetary reimbursement. Yet, at any rate, these adverse effects would not reach the standard of irreparable harm required to delineate standing for a serious (arguable) case. [36]

What this case shows is that COVID-19, or any pandemic forcing the curtailment of industry, classifies as force majeure warranting creative and urgent solutions to be quickly made that may not wholly satisfy all parties, but, on balance, adequately address all interests.

The New Zealand High Court similarly recognised COVID-19 lockdowns as an unforeseen event which cloaked the performance of contractual duties in uncertainty and delay. [37] The Court accordingly made allowances for the speculative but imminent losses. [38]

Although not the main issue, it appeared COVID-19 fell within the scope of the force majeure clause, which reads:

“If MPD is not able to complete the enabling works (other than the sewerage works under clause 1.4) by 30 April 2019 or any extended date permitted under this clause (Enabling Works Sunset Date) then GCD is entitled to instruct and engage a third party contractor to complete the enabling works at market competitive prices, at the cost of MPD provided that GCD must act reasonably, in good faith and work collaboratively with MPD before engaging the third party contractor and have regard to the nature and extent of the remaining incomplete works, the reasons for the delay, whether or not MPD has the right to terminate its works contract with its contractor and the need to practically transition works between MPD’s contractor and the third party contractor. GCD may pay for such costs on behalf of MPD under this clause and any payments made shall be a debt from MPD to GCD City and shall be paid by MPD to GCD within 10 working days of GCD issuing a tax invoice to MPD.
Where there is any delay in completing the enabling works as a result of any force majeure which is beyond the control of MPD (including adverse weather conditions, strikes, lockouts, unavailability of materials, fire, earthquake, flood, explosion, storm, tempest, riot or civil commotion)then, in that case, the Enabling Work Sunset Date will be extended by a reasonable period of time which takes into consideration the cause of delay.” [39]

Under this clause did the parties agree to a variation?

As expected, COVID-19 merely causing delays did not amount to frustration, nor was the possibility even raised in the judgement.

How to Draft a Good Force Majeure clause?

It is appropriate at this point to address how force majeure clauses should be drafted, especially in light of COVID-19, causing widespread delays, changes and losses.

Considering the obiter dicta [41] of the Privy Council and Ontario Court of Appeal, it follows that drafting a force majeure clause should be done as follows:

1. The exact allocation of risk is to be made expressly clear; and

2. In what manner the parties are, within the parameters of their agreed risk apportionment, to manifest their reliance upon the clause should a disruptive and fortuitous event supervene.

3. Specify the process and details required to satisfy reliance upon the clause.

4. Next is outlining of the standard of the severity of the misfortune required to enliven the clause. We recall the doctrine of frustration and its high threshold of impossibility. Understanding the benefits in express terms dealing with frustration and the possibility for absurd results arising from the doctrine’s invocation demand setting a lower limit.

Ideally, to capitalise on the certainty inherent in a force majeure clause, the enlivening standard ought to be nearer to hindrance than to absolute invalidity.

Business interests, commercial purposes and envisaged expectations should be protected more carefully by a clause which permits termination upon an indication that circumstances are changing than by waiting until after the damage to invoke a strict doctrine

5. We also need to set out the force majeure circumstances which would and would not permit termination. 

Depending on the industry, particularly harmful instances of frustrating events should be specifically enumerated, accompanied by the ordinary circumstances found in the quoted clauses and discussion of frustration.

In the interests of brevity and ease of reading, classes and categories of force majeure ought to take priority over the listing of individual events.

We need to account for all desired circumstance.

Frame all lists as non-exhaustive and inclusive or exemplary of a potentially much longer list.

Use sweeping-up phrases to ensure interpretation loopholes would not exclude rare or unique events. No room must be left for either the parties or a court for competing interpretations unless the intention is to create a flexibly applicable clause.

COVID-19 is a wake-up call because it is an example of a rare occurrence – a pandemic – that the majority of boilerplate force majeure clauses would not have identified.

Given its grave impact on commerce, on a micro and macro scale, it is vital that for the future, rare occurrences that are currently unforeseeable, as COVID-19 once was, and therefore futile to attempt to identify, have as little impact as possible.

Regardless of the industry, whether food, financial, entertainment or sports, it is vital not to jeopardise each party’s livelihoods if, or when, the onset of another force majeure looms.

Having a grasp of the principles and purposes underlying force majeure clauses outweighs the misguided efficacy of formulaically copying and splicing together existing boilerplate clauses.

It is crucial to have robust risk mitigation without drafting errors or displaced terms – being typical results from recycling boilerplate clauses – preventing the unambiguous reading and application of force majeure clauses. [42]

Mistakes may be difficult to rectify, with the parol evidence rule offering, at least as a starting point, a blanket prohibition on recourse to extrinsic materials. [43]

Editor’s Note:
Take into account Murphy’s Law!

In an abundance of caution, good corporate governance risk mitigation practices dictate that we need to take into account the non-binding non-judicial precedent ➲ Murphy’s Law!

Many variations essentially state the following:

“If anything that can go wrong, it will go wrong!” [44]

I also like this corollary, from the famous management consultant, prolific author(39+ books) + “business thinker” Peter Drucker ➲ Drucker’s Law:

“If one thing goes wrong, everything else will, and at the same time!” [45]

These truisms unfold with relentless precision throughout history.

Here is a snapshot of some of the currently known (and recently in the news) risks for parties to contracts to consider:

➲ Climate change: extreme weather events incl. Bushfires, tornadoes, etc.;

➲ Asteroid “2018VPI” projected to come near Earth on November 2, 2020 (.41% chance of hitting the Earth); [46]

➲ Cyber-attacks, loss of internet connectivity etc. Especially in light of the increased level of vulnerability inherent in #WFH [working from home] combined with continually reported high-profile data breaches, sale of private data on the dark web + the massively increased reliance by businesses on eCommerce).

A “perfect storm” for Drucker’s Law!  

It is unlikely that these risks were all identified and included in the drafting of existing contracts, and that is before we start to consider “unknown” risks.

Comprehensive Insurance Clause

It is therefore strongly recommended to draft new contracts or if already executed, make appropriate amendments, to include a surviving general insurance clause which specifies the following requirement:

All parties to the contract are to:

➲ Maintain agreed-upon levels of current comprehensive insurance coverage up to a minimum $ value; and

➲ Provide regular evidence of currency to all other parties.


[1] Eg., Yara Nipro P/L v Interfert Australia P/L [2010] QCA 128, [26].

[2] BP Refinery (Westernport) Pty Ltd vHastings Shire Council (1977) 180 CLR 266, 283.

[3] Davis Contractors Ltd v Fareham UDC [1956] AC 696, 729; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 357.

[4] See Joseph Constantine SS Line Ltd v Imperial Smelting Corp Ltd [1942] AC 154, 184.

[5] Paradinev Jane (1647) Aleyn 26, 27.

[6] HirjiMulji v Cheong Yue SS Co Ltd[1926] AC 497.

[7] FA Tamplin SS Co Ltd v Anglo-MexicanPetroleum Products Co Ltd [1916] 2 AC 397.

[8] Ocean Tramp Tankers Corp v V/O Sovfracht (The Eugenia)[1964] 2 QB 226.

[9] Tsarikoglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93.

[10] Krell vHenry [1903] 2 KB 740.

[11]  Scanlan’s New Neon Ltd v Tooheys Ltd (1943)67 CLR 169.

[12] Jacksonv Union Marine Insurance Co Ltd(1874) LR 10 CP 125.

[13] DennyMott & Dickson Ltd v James B Fraser & Co Ltd [1944]AC 265.

[14] Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32.

[15] Kodros Shipping Corp of Monrovia v Empressa Cubana de Fletes (The Evia (No 2))[1983] 1 AC 736.

[16] Metropolitan Water Board v Dick Kerr& Co Ltd [1918] AC 119.

[17] Davis Contractors Ltd v Fareham UDC [1956]AC 696, 729.

[18] See Ocean Tramp Tankers Corp v V/O Sovfracht (The Eugenia) [1964] 2QB 226, 239.

[19] Hoecheong Products Co Ltd v Cargill Hong Kong Ltd [1995] 1 WLR 404,408.

[20] Hoecheong Products Co Ltd v CargillHong Kong Ltd [1995] 1 WLR 404, 406.  

[21] Hoecheong Products Co Ltd v Cargill Hong Kong Ltd [1995] 1 WLR 404,409.

[22] Hoecheong Products Co Ltd v Cargill Hong Kong Ltd [1995] 1 WLR 404,409-410.

[23] Hoecheong Products Co Ltd v Cargill Hong Kong Ltd [1995] 1 WLR 404,410.

[24] Hoecheong Products Co Ltd v CargillHong Kong Ltd [1995] 1 WLR 404, 410.

[25] Hoecheong Products Co Ltd v CargillHong Kong Ltd [1995] 1 WLR 404, 410.

[26] Hoecheong Products Co Ltd v CargillHong Kong Ltd [1995] 1 WLR 404, 410.

[27] Hoecheong Products Co Ltd v CargillHong Kong Ltd [1995] 1 WLR 404, 405.

[28] Hoecheong Products Co Ltd v Cargill Hong Kong Ltd [1995] 1 WLR 404,411.

[29] Hoecheong Products Co Ltd v CargillHong Kong Ltd [1995] 1 WLR 404, 410.

[30] Transcanada Pipelines Ltd v Northern and Central Gas Corp Ltd (1983) 146 DLR (3rd) 293. (Pinpoints unavailable for this case)

[31] Air Passengers Rights v Canada(Transportation Agency) [2020] FCJ No 630.

[32] Air Passengers Rights v Canada(Transportation Agency) [2020] FCJ No 630, [5]-[7].

[33] Air Passengers Rights v Canada(Transportation Agency) [2020] FCJ No 630, [3].

[34] Air Passengers Rights v Canada(Transportation Agency) [2020] FCJ No 630, [10].

[35] Air Passengers Rights v Canada(Transportation Agency) [2020] FCJ No 630, [21], [25].

[36] Air Passengers Rights v Canada(Transportation Agency) [2020] FCJ No 630, [31].

[37] Murphys ParkDevelopment LP v Green City Developments Ltd [2020] NZHC 813,[13], [51].

[38] Murphys Park Development LP v GreenCity Developments Ltd [2020] NZHC 813, [58].

[39] Murphys Park Development LP v GreenCity Developments Ltd [2020] NZHC 813, [7].

[40] Murphys Park Development LP v GreenCity Developments Ltd [2020] NZHC 813, [9].

[41] “obiter dicta” are statements within a judgment that do not constitute as the ratio and is subsequently non-binding on future cases.

[42] At the following URL is a self-service style of generating tailored force majeure clauses:

[43] Inglis vJohn Buttery & Co (1878) 3 App Cas 552, 577; Gordon v Macgregor (1909) 8 CLR 316, 323.

[44] Wikipedia URL:

[45] Wikipedia URL:

[46] Center for Near Earth Objects Studies (CNEOS) at NASA’s Jet Propulsion Laboratory URL:


This article was written by Shakvaan Wijetunga | Virtual Intern, Blue Ocean Law Group℠.

Cover Image Credit:

Photo by Marcus Woodbridge on Unsplash

Important Notice:

This article is intended for general interest and information only. It is not legal advice and nor should it be relied upon or used as such. Always consult a lawyer for specialist advice specific to your needs and circumstances.