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New York Construction Law Blog

A force majeure clause is crucial to any construction contract

Posted by Karl Silverberg | Mar 30, 2023 | 0 Comments

These days, the only thing predictable about the weather is that it's unpredictable. New York can experience snowstorms well into what is officially spring (and before the start of winter). Devastating storms like Superstorm Sandy can leave residents without a home or business for months or longer.

As a contractor, you know that weather events are just one thing that can end or at least significantly delay or add cost to a project. That's why it's crucial to have a solid force majeure clause in your contracts.

What do force majeure clauses cover?

A force majeure (“superior force”) clause can protect contractors from suffering serious financial damage if something could not have been reasonably foreseen or planned for impacts the project. While it typically covers “acts of God” like storms, earthquakes and floods, it should also cover things like unexpected material shortages, labor strikes, a breakdown in the supply chain, war, pandemics and more.

For a client to agree to it, a force majeure clause needs to be fair. For your own best interests, you don't want it to be incomplete, unreasonable, too broad or otherwise able to be successfully challenged in court if it's used.

You can help avoid a challenge to your invocation of the clause

One reason why some force majeure clauses are challenged is that the other party to the contract argues that the event that caused it to be invoked was indeed foreseeable or at least that there should have been a backup plan in place and ready to go. For example, maybe there had been talk of a strike for months before it occurred. Maybe there was no plan in place to deal with flooding if rainfall was unusually heavy. 

There's a lot more to know about force majeure clauses. Having a well-crafted one is crucial, which is just one reason why legal guidance is required when creating and negotiating your contracts. However, communication and a good relationship with your client and other parties involved in the process can also help you avoid ending up in court or arbitration when something goes awry.

About the Author

Karl Silverberg

Karl Silverberg Contact Me: (631) 778-6077 Email me Practice Areas: Construction Law Biography Prior to law school, Mr. Silverberg worked as a professional engineer, and has eight years of experience working as a structural engineer on public sector transportation projects. Mr. Silver...


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