The Force Majeure Clause
Not many people are familiar with the seldom used Force Majeure Clause, but unfortunately, it is getting quite a bit of attention from attorneys that represent companies in all types of industries. The reason is because of the interruption in business performance and contract supply agreements caused by the COVID-19 strain of the coronavirus. Manufacturing, professional sporting events, and even schools are beginning to feel the effects of the coronavirus and how it is impacting business on a global scale.
What is a Force Majeure Clause?
A force majeure clause is a clause that allows the party required to perform under a contract to be excused from performance and avoid breach of contract damages if a true force majeure event occurs.
The use of the force majeure clause is important not just for the company that is performing a service or manufacturing a product that must be delivered on time, but it is also very important for the contracting party on the other side that is expecting timely performance and delivery pursuant to that contract. A delay or termination of a contract has far reaching consequences and can actually result in a chain reaction of defaults if there are several companies relying on the delivery of key components that go into the production and manufacturing of a specific item. One key component not delivered for several weeks can shut down an entire assembly line and result in lost sales, default damages for failure to perform, lost profits and even a net loss at year end leading to a company going out of business or filing for bankruptcy protection.
While many large companies have been including force majeure language in their contracts for years, many smaller and mid-sized companies have not. But the clause is not just for large companies doing business in multiple countries, there is also a reason to include the clause in a small business contract as well. For instance, using a force majeure clause in a construction contract is actually a very smart move given the state of wars, terrorism and the recent widespread coronavirus that has disrupted our capital markets, manufacturing, sale of goods, deliveries and even sporting events.
Origin of the Force Majeure Clause
According to the Merriam-Webster online dictionary “force majeure” translates literally from French as “superior force”. A force majeure clause is typically inserted into a contract to protect the party required to perform in the event there is a chance occurrence or an unavoidable event that prevents or delays performance, but as this article will examine, it can also be relied upon by the party expecting performance to either provide agreed upon delay damages or allow a quick termination of the agreement so that another contract can be signed with a more capable counter-party.
Not many people are familiar with the seldom used Force Majeure Clause, but unfortunately, it is getting quite a bit of attention from attorneys that represent companies in all types of industries. The reason is because of the interruption in business performance and contract supply agreements caused by the COVID-19 strain of the coronavirus. Manufacturing, professional sporting events, and even schools are beginning to feel the effects of the coronavirus and how it is impacting business on a global scale.
What is a Force Majeure Clause?
A force majeure clause is a clause that allows the party required to perform under a contract to be excused from performance and avoid breach of contract damages if a true force majeure event occurs.
The use of the force majeure clause is important not just for the company that is performing a service or manufacturing a product that must be delivered on time, but it is also very important for the contracting party on the other side that is expecting timely performance and delivery pursuant to that contract. A delay or termination of a contract has far reaching consequences and can actually result in a chain reaction of defaults if there are several companies relying on the delivery of key components that go into the production and manufacturing of a specific item. One key component not delivered for several weeks can shut down an entire assembly line and result in lost sales, default damages for failure to perform, lost profits and even a net loss at year end leading to a company going out of business or filing for bankruptcy protection.
While many large companies have been including force majeure language in their contracts for years, many smaller and mid-sized companies have not. But the clause is not just for large companies doing business in multiple countries, there is also a reason to include the clause in a small business contract as well. For instance, using a force majeure clause in a construction contract is actually a very smart move given the state of wars, terrorism and the recent widespread coronavirus that has disrupted our capital markets, manufacturing, sale of goods, deliveries and even sporting events.
Origin of the Force Majeure Clause
According to the Merriam-Webster online dictionary “force majeure” translates literally from French as “superior force”. A force majeure clause is typically inserted into a contract to protect the party required to perform in the event there is a chance occurrence or an unavoidable event that prevents or delays performance, but as this article will examine, it can also be relied upon by the party expecting performance to either provide agreed upon delay damages or allow a quick termination of the agreement so that another contract can be signed with a more capable counter-party.
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The clause goes back many years and was originally intended to be used in the event of a war, union strikes, or extreme weather such as an earthquake, fire or flood. In more recent times the use of the force majeure clause by business law attorneys has been expanded to include such unexpected events over which neither of two contracting parties has any control. Some of these events now include riots, government intervention, decrees or orders, explosions, acts of terrorism, epidemics, pandemics, famine, plagues or other natural but unforeseen disasters under the umbrella of acts of God. Based on all the risks that can affect performance of a contract, using force majeure language in a small business contract can help protect your client from unnecessary risk and financial harm. Don’t overlook a force majeure clause for small business clients, they need those protections as well.
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Force Majeure Situations Under the UCC
The scope of Article 2 of the UCC applies to transactions in goods and Article 2-615 Excuse by Failure of Presupposed Conditions, although it does not use the term “force majeure” it provides a party with a defense “ . . . if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.”
Additionally, the non-performance is only excused if the party complies with paragraph (b) and (c). Subsection (b) requires, in situations where only a part of the seller’s capacity to perform is affected, that the seller allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable.
Paragraph (c), which is similar to the case law of most states, even those that have not adopted Article 2 on the sale of goods, requires the seller to notify the buyer seasonably that there will be delay or non-delivery and, when allocation is required under paragraph (b), of the estimated quota thus made available for the buyer.
Only 14 states have adopted Article 2 of the Uniform Commercial Code (UCC), but relying on that instead of your own force majeure clause can be dangerous. Why have only 14 states adopted Article 2? Most likely because there is a conflict with Article 2 and the case law that has developed in these non-adopting states over the years. The adopting states are Arizona, Arkansas, California, Georgia, Kansas, Kentucky, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, and Oklahoma. The non-adopting states include Connecticut, Delaware, Illinois, Florida, Massachusetts, Ohio, Pennsylvania, Rhode Island, and Texas. So Connecticut attorneys drafting Connecticut business contracts should carefully consider all the factors involved in the transaction to properly protect their clients.
Additionally, the non-performance is only excused if the party complies with paragraph (b) and (c). Subsection (b) requires, in situations where only a part of the seller’s capacity to perform is affected, that the seller allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable.
Paragraph (c), which is similar to the case law of most states, even those that have not adopted Article 2 on the sale of goods, requires the seller to notify the buyer seasonably that there will be delay or non-delivery and, when allocation is required under paragraph (b), of the estimated quota thus made available for the buyer.
Only 14 states have adopted Article 2 of the Uniform Commercial Code (UCC), but relying on that instead of your own force majeure clause can be dangerous. Why have only 14 states adopted Article 2? Most likely because there is a conflict with Article 2 and the case law that has developed in these non-adopting states over the years. The adopting states are Arizona, Arkansas, California, Georgia, Kansas, Kentucky, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, and Oklahoma. The non-adopting states include Connecticut, Delaware, Illinois, Florida, Massachusetts, Ohio, Pennsylvania, Rhode Island, and Texas. So Connecticut attorneys drafting Connecticut business contracts should carefully consider all the factors involved in the transaction to properly protect their clients.
What are the Elements of a Force Majeure Clause?
- Clearly Defined Force Majeure Event
The clause should define what will constitute or be considered a force majeure event. The contract should be fairly specific because courts have ruled against companies that have tried to use a force majeure clause as a defense to breach of contract claims where the clause was too general. Courts do not like to re-write contracts, guess at damages that are hard to prove and they hate to enforce vague or poorly written contracts.
If you are considering the impact the coronavirus (as well as future epidemics and pandemics) may have on your clients’ business contracts, whether you are representing the performing party or the requesting party, it is recommended that you use fairly specific language and don’t leave it up to court interpretation. One drafting suggestion would be to include language that if either the World Health Organization (WHO) or the Centers for Disease Control (CDC) declares a “pandemic” and that is directly and causally connected to non-performance then that should allow the performing party to send written notice within 5 business days of the pandemic announcement notifying the other party of cancellation based on the declared pandemic.
Another suggestion would be to use a force majeure clause that allows the performing party a delay in performance if any disease or virus results production delay, including that caused by, but not limited to delayed supply shipments, quarantine of workers, sick/absent workers or shut down in necessary services required to perform and delivery pursuant to the terms of the contract. In that case a notice provision should be included, and the rights of each party stated, because if the delay is too long, the party requesting performance would then be free to cancel and get the contract performed by another company.
- Giving Notice of a Claimed Force Majeure Event.
Your contract should spell out exactly what happens of a party feels a qualifying event has occurred, how notice is given, when it is required to be given and who needs to be sent the notice. Delays in giving notice can lead to claims that the non-performing party waived its right to claim the defense and that resulted in the non-breaching party being unable to mitigate its damages. Even if the force majeure clause does not have a detailed notice provision, clients are well-advised to give notice at the first indication that the clause may need to be asserted. Once notice is given the client should then begin documenting the claim in case things do not improve and there is ultimately a non-performance. It really is a balancing act that only the client can answer. Is it better to cancel if the other party agrees and can get the contract fulfilled elsewhere or is it better to take the risk of being able to perform (even if late) to save the client and not have to worry about a competitor taking your place long term?
- Causal Connection Between the Defined Event and the Delay or Failure to Perform
Again, just as a poorly defined event will cause a court to rule against a non-performing party, failing to define what type of causal connection is required to excuse performance will also cause a court to rule against the non-performing party. The more clearly defined the event and what is required to establish a causal connection the more likely your chance of success and avoiding liability for delay or complete failure to perform.
While most states do not have specific state laws or regulations governing the use of a force majeure clause or defining what events will qualify as such or the remedies that will apply, each state has case law that has evolved over the years to interpret the use of such clauses in the event a party invokes the clause as a defense to excuse performance in a breach of contract claim. Therefore, it is extremely important to a party claiming the defense to have a well thought out and carefully drafted section that applies to the specific contract and the parties involved, rather than just using a generic boiler plate clause.
- Was the Non-performance Beyond the Company’s Control?
It is not enough that the event was clearly a force majeure and that it was causally connected to the non-performance if the non-performing company could have obtained materials elsewhere, even at a higher price, to finish the job. The non-performance must be due to circumstances beyond its control. If the company refuses to buy materials elsewhere because they are too expensive and they may take a loss on the completion of the contract, the court may argue that they still should have performed and therefore they are liable for breach of contract damages. If the cost of completion became so impracticable because of huge price prices surges related to the catastrophic event, then that will likely weigh in favor of the non-performing party and provide a valid defense.
- Did the Non-performing Party Take Reasonable Steps to Avoid or Mitigate the Consequences of the Event?
A party cannot just cancel a contract by invoking the protection of a force majeure clause to get out of a contract that is now a burden or less profitable to perform. They must take reasonable steps to overcome the effect of the event that they claim is resulting in non-performance. Good record keeping and proof will be essential if they claim they did everything they could to still meet the terms of the contract.
The clause should define what will constitute or be considered a force majeure event. The contract should be fairly specific because courts have ruled against companies that have tried to use a force majeure clause as a defense to breach of contract claims where the clause was too general. Courts do not like to re-write contracts, guess at damages that are hard to prove and they hate to enforce vague or poorly written contracts.
If you are considering the impact the coronavirus (as well as future epidemics and pandemics) may have on your clients’ business contracts, whether you are representing the performing party or the requesting party, it is recommended that you use fairly specific language and don’t leave it up to court interpretation. One drafting suggestion would be to include language that if either the World Health Organization (WHO) or the Centers for Disease Control (CDC) declares a “pandemic” and that is directly and causally connected to non-performance then that should allow the performing party to send written notice within 5 business days of the pandemic announcement notifying the other party of cancellation based on the declared pandemic.
Another suggestion would be to use a force majeure clause that allows the performing party a delay in performance if any disease or virus results production delay, including that caused by, but not limited to delayed supply shipments, quarantine of workers, sick/absent workers or shut down in necessary services required to perform and delivery pursuant to the terms of the contract. In that case a notice provision should be included, and the rights of each party stated, because if the delay is too long, the party requesting performance would then be free to cancel and get the contract performed by another company.
- Giving Notice of a Claimed Force Majeure Event.
Your contract should spell out exactly what happens of a party feels a qualifying event has occurred, how notice is given, when it is required to be given and who needs to be sent the notice. Delays in giving notice can lead to claims that the non-performing party waived its right to claim the defense and that resulted in the non-breaching party being unable to mitigate its damages. Even if the force majeure clause does not have a detailed notice provision, clients are well-advised to give notice at the first indication that the clause may need to be asserted. Once notice is given the client should then begin documenting the claim in case things do not improve and there is ultimately a non-performance. It really is a balancing act that only the client can answer. Is it better to cancel if the other party agrees and can get the contract fulfilled elsewhere or is it better to take the risk of being able to perform (even if late) to save the client and not have to worry about a competitor taking your place long term?
- Causal Connection Between the Defined Event and the Delay or Failure to Perform
Again, just as a poorly defined event will cause a court to rule against a non-performing party, failing to define what type of causal connection is required to excuse performance will also cause a court to rule against the non-performing party. The more clearly defined the event and what is required to establish a causal connection the more likely your chance of success and avoiding liability for delay or complete failure to perform.
While most states do not have specific state laws or regulations governing the use of a force majeure clause or defining what events will qualify as such or the remedies that will apply, each state has case law that has evolved over the years to interpret the use of such clauses in the event a party invokes the clause as a defense to excuse performance in a breach of contract claim. Therefore, it is extremely important to a party claiming the defense to have a well thought out and carefully drafted section that applies to the specific contract and the parties involved, rather than just using a generic boiler plate clause.
- Was the Non-performance Beyond the Company’s Control?
It is not enough that the event was clearly a force majeure and that it was causally connected to the non-performance if the non-performing company could have obtained materials elsewhere, even at a higher price, to finish the job. The non-performance must be due to circumstances beyond its control. If the company refuses to buy materials elsewhere because they are too expensive and they may take a loss on the completion of the contract, the court may argue that they still should have performed and therefore they are liable for breach of contract damages. If the cost of completion became so impracticable because of huge price prices surges related to the catastrophic event, then that will likely weigh in favor of the non-performing party and provide a valid defense.
- Did the Non-performing Party Take Reasonable Steps to Avoid or Mitigate the Consequences of the Event?
A party cannot just cancel a contract by invoking the protection of a force majeure clause to get out of a contract that is now a burden or less profitable to perform. They must take reasonable steps to overcome the effect of the event that they claim is resulting in non-performance. Good record keeping and proof will be essential if they claim they did everything they could to still meet the terms of the contract.
When Parties Cannot Agree on the Event Being a Force Majeure?
First of all, the contract should have either an arbitration clause or a litigation clause so that will determine the forum to settle the dispute. If the matter is that contentious and the parties cannot agree on whether or not the force majeure clause applies, then it really will come down to a battle of the parties first proving if a force majeure event was taken place as per the contract definition. Next the causal connection and then the damages will have to be proven, keeping in mind that the party opposing the force majeure claim will have to prove that it acted timely to mitigate its damages. So, while the non-performing party has the burden of proof on the force majeure issue, the other party has the burden of proof that it tried timely and reasonably to mitigate its damages.
Should You Agree on a Force Majeure Remedy in Advance?
This will depend on the type of contract, service or product involved. If you represent the performing party you have to explain all the risks and let the client decide which options are best suited to the particular contractual situation. Unless a factory burns down, there is a prolonged strike or we have a pandemic like we have not seen in our lifetimes, then in most situations the contract can be delayed thirty, sixty or ninety days. If there is a way that the loss of business or the occurrence of the event can be covered by insurance then that should be taken into consideration on how the clause is worded as well. Talk with the insurance company to see if there is a way to protect your client’s business risk in the event of a catastrophe that results in a failure to perform.
Construction contracts typically have a force majeure clause in them that can include weather events that delay completion of a project. Usually if there is above average rainfall or snowfall there are extra days added to the completion date for each day that falls above the historical average. Failure to complete on time results in damages awarded to the project owner or general contractor.
Construction contracts typically have a force majeure clause in them that can include weather events that delay completion of a project. Usually if there is above average rainfall or snowfall there are extra days added to the completion date for each day that falls above the historical average. Failure to complete on time results in damages awarded to the project owner or general contractor.
How Courts Interpret a Force Majeure Clause and Events
There is a fairly common analysis courts use when confronted with force majeure defense claims, however, the big problem is that there are numerous types of clauses and rarely are any two clauses identical. Next you have the problem of the various facts in any given situation such as, did the parties include the specific event in the contract, if the event occurs does it delay performance or allow termination by a party, what sort of notice is required, and what type of actions did the party suing take to mitigate damages.
Courts will look very carefully at the language of the specific force majeure clause being relied upon and will then look at all the factors of the specific situation. First off the analysis will involve whether or not the “specific event” was listed in the clause so there is no doubt that the parties agreed that that specific event would excuse performance or at least allow for a delay in performance. Just because the event happens though is not enough, there has to also be a “causal connection” that actually results in the non-performance. In other words, is the non-performing party just using the occurrence of the event as an excuse to get out of the contract because prices went up or did the event actually result in non-delivery of goods because of an event such as war or an explosion at a factory.
The party relying on the force majeure clause will have the “burden of proof” to establish that the clause actually applies in the specific situation based on all the facts and the wording of the force majeure section in the contract. If the language required the defending party to use its “best efforts” to still perform its contractual duties then that party will have to prove that it did in fact use its best efforts to perform. Courts will not allow a defendant to use a force majeure event to get out of a contract because conditions changed, and it simply was no longer a good deal or became less profitable for the defendant to complete performance.
While the court will likely view the specific language the parties used in the force majeure clause as the most important factor when conducting its analysis, another important factor will be whether or not the language took into consideration the “foreseeability of the event occurring,” especially if boiler plate language was used. For instance, the World Bank website lists a few examples and one such example uses the following language after listing very specific events such as wars, strikes and earthquakes:
Courts will look very carefully at the language of the specific force majeure clause being relied upon and will then look at all the factors of the specific situation. First off the analysis will involve whether or not the “specific event” was listed in the clause so there is no doubt that the parties agreed that that specific event would excuse performance or at least allow for a delay in performance. Just because the event happens though is not enough, there has to also be a “causal connection” that actually results in the non-performance. In other words, is the non-performing party just using the occurrence of the event as an excuse to get out of the contract because prices went up or did the event actually result in non-delivery of goods because of an event such as war or an explosion at a factory.
The party relying on the force majeure clause will have the “burden of proof” to establish that the clause actually applies in the specific situation based on all the facts and the wording of the force majeure section in the contract. If the language required the defending party to use its “best efforts” to still perform its contractual duties then that party will have to prove that it did in fact use its best efforts to perform. Courts will not allow a defendant to use a force majeure event to get out of a contract because conditions changed, and it simply was no longer a good deal or became less profitable for the defendant to complete performance.
While the court will likely view the specific language the parties used in the force majeure clause as the most important factor when conducting its analysis, another important factor will be whether or not the language took into consideration the “foreseeability of the event occurring,” especially if boiler plate language was used. For instance, the World Bank website lists a few examples and one such example uses the following language after listing very specific events such as wars, strikes and earthquakes:
“. . . other unforeseeable circumstances beyond the control of the Parties against which it would have been unreasonable for the affected party to take precautions and which the affected party cannot avoid even by using its best efforts, which in each case directly causes either party to be unable to comply with all or a material part of its obligations under this Agreement;”
As you can see from the language used in the above force majeure clause, the event must have been both unforeseeable and unavoidable even by the non-performing party using its best efforts.
Another important factor the courts will examine is whether or not the event was beyond the control of the party and caused without any negligence or fault on the part of the non-performing party.
Another important factor the courts will examine is whether or not the event was beyond the control of the party and caused without any negligence or fault on the part of the non-performing party.
Best Practices for Force Majeure Claims
Attorney Joseph LaRocco feels there are a number of things attorneys and clients can do to reduce the risk and in many cases resolve a dispute before resorting to arbitration or litigation. It is always in the best interests of the party required to perform to have a solid force majeure clause to reduce its risk in the event of an unforeseen catastrophe, avoid litigation, and maintain a good relationship with the other party.
- Don’t use Boiler Plate Force Majeure Clauses.
Talk with the client to understand the contract performance requirements and what can go wrong. Wording the clause in a general or non-descript manner and you run the risk of not being able to prove the event was unforeseeable. If you are too specific you run the risk of not covering the specific event. Remember, if the event is spelled out in the contract it doesn’t necessarily have to be an unforeseen event if you word it so that the event is simply something that although not totally unforeseeable, was of such a nature that the parties took it into consideration and agreed it would be grounds for non-performance or a delay in performance without constituting a breach of contract.
- Keep Good Records.
Clients need to be reminded they need to keep good records, whether it is to bring a legal claim or defend a legal claim. If you have a great claim, but no supporting documentation to back it up and are only relying on your client’s testimony, then you better negotiate a settlement. Refer back to the force majeure clause often when preparing a claim to make sure you meet all the elements contained in the clause as well as all the elements established by applicable case law. Gather e-mails, reports or notices from government or municipal agencies, pictures where necessary, communications from suppliers or other companies confirming a particular problem caused by an event that is directly affecting performance.
- Impossibility of Performance Even Without a Force Majeure Clause
You are much better off with a well crafted paragraph specifying what qualifies as an event, how notice is given and what the remedy is, but even if you don’t have a force majeure clause in your contract or you do but you did not spell out specifically the event that is causing non-performance, all is not lost. Most states have case law allowing for impossibility of performance as a defense to a breach of contract case if all the elements are met. Also, fourteen states have adopted Article 2 of the UCC so you may be able to rely on that as well.
In order to make a legitimate breach of contract defense based on impossibility of performance, the act or event that renders performance impossible must have occurred or been created after the parties signed the contract. The party claiming the impossibility as a defense to the breach of contract claim must not have created the event or circumstance or somehow been at fault, otherwise the impossibility claim becomes self-serving.
Also, the parties must have assumed and agreed that the situation or event was not something that was going to happen, in other words, it had to be totally unanticipated and did not factor into the price, time of performance or other terms of the contract. If it was discussed and made part of the negotiation, then it was part of the bargain and can be argued it was reasonably foreseeable and the breaching party assumed the risk of such occurrence, whether it was a force majeure or not.
In order to make a legitimate breach of contract defense based on impossibility of performance, the act or event that renders performance impossible must have occurred or been created after the parties signed the contract. The party claiming the impossibility as a defense to the breach of contract claim must not have created the event or circumstance or somehow been at fault, otherwise the impossibility claim becomes self-serving.
Also, the parties must have assumed and agreed that the situation or event was not something that was going to happen, in other words, it had to be totally unanticipated and did not factor into the price, time of performance or other terms of the contract. If it was discussed and made part of the negotiation, then it was part of the bargain and can be argued it was reasonably foreseeable and the breaching party assumed the risk of such occurrence, whether it was a force majeure or not.
- Communicate with the Other Party Waiting for Performance
If your client is positive it will not be able to perform, even with a delay, the sooner you get out in front of the matter the better. A failure to notify the other party in a timely manner, even if the force majeure clause does not mention a notice requirement, will make it more difficult for that party to mitigate damages and then liability will squarely rest on the shoulders of the non-performing company, especially if the force majeure event is not clear or is hotly contested by the other party.
- Try to Negotiate and Early Settlement Between the Parties
If your client is in a weak position because of the failure of your client to make alternative plans, or the nature of the catastrophe you are dealing with was relatively foreseeable, or the failure of your client to give timely notice, then another approach to take is to try and negotiate a settlement or remedy. Maybe your client can have a third party finish the project or delivery of goods or agree to some sort of partial completion so the other party can at least get part performance and your client can salvage the relationship with a company that may understand the problem was dealt with promptly and the best way possible. As well crafted as a force majeure clause may be, there are bound to be situations that just could not be anticipated so try to get the parties together quickly to resolve the problem instead of avoiding it.
- Government Declaration of Force Majeure Not a Guaranty
In a February 2020 article posted by DHL, it was reported that the China Council for the Promotion of International Trade (CCPIT) issued over 1,500 force majeure certificates covering contracts totaling over $15 billion and covering 30 sectors that could help shield companies from legal damage claims. Interestingly enough, the CCPIT made it clear that the certificates were not a not an excuse for getting out of an unfavorable contract reasonable entered into by two parties and the terms of the contract should really dictate the outcome. So, as you can see, the causal connection has to be there regardless of what government declarations or actions are taken.
Conclusion
Hopefully, these force majeure tips for drafting, analyzing, making claims and defending claims give you a better understanding of avoiding damages for your clients when they are faced with a catastrophe and are unable to meet their performance goals. Talking with the client to understand the business they are in and the specific contract they are agreeing to with a counter-party can help you better craft a well thought out force majeure clause that is right on point should it be needed.
