As a general rule, the credits do not contain force majeure clauses. While they may include a significant negative effect clause in the event of a delay, this type of clause does not excuse the benefit, but allows lenders to refuse an unused portion of the loan, to require a prepayment or to have the option to place the loan on demand. Article 7.1.7 of the principles of UNIDROIT governing international trade agreements provides for a form of force majeure: which is similar to the terms of the common law and the concept of civil law, but which is not identical: the relief of benefits is granted “if that party proves that the non-performance is due to a disability beyond its control and which it could reasonably consider only at the time of the conclusion of the contract , it would have taken into account or had to overcome it or overcome its consequences.”  In California, force majeure is not necessarily limited to the equivalent of an act of God, but the consideration is whether, in the particular circumstances, such an insurmountable intervention took place without the intervention of the party, which could not have been avoided by prudence, diligence and diligence. Mathes v. City of Long Beach, 121 Cal. Ca. 2d 473, 477, 263 p.2d 472, 474 (1953). Even in the case of force majeure in a contract, the mere increase in costs does not excuse the benefit, unless there is an extreme and inappropriate difficulty, a load, injury or loss. Butler v. Nepple, 54 Cal. 2d 589, 598, 354 p.2d 239 (1960) The operation of the force majeure clause will depend on how the clause was formulated and the particular circumstances they activated. The effects of the COVID 19 pandemic are having an increasing impact on operations, including the ability of companies to meet their contractual obligations.
Whether your company encounters such difficulties or attempts to impose the service as part of an agreement, it is important to understand the concept of force majeure, the essential clauses relating to adverse amendments and related contractual defences, which could provide a basis for the excuse of the service. This article examines the parameters of these contractual clauses under New York law, the common law doctrines of impossibility and frustration, and infeasibility under the Uniform Trade Code.