Online Reporter
Trust Maanda
Legal Position
A PARTY to a contract may be excused from performing it on the basis of vis major.
Vis major (Latin for “superior force”) refers to, unavoidable event, which is overwhelming that affects a party’s ability to perform their side of the bargain. A natural disaster like a hurricane or earthquake, that is beyond human control can excuse a party from fulfilling contractual obligations or liability.
These natural disasters are referred to as essentially acting as an “Act of God” and are often included under a broader “force majeure” clause in contracts.
Vis major covers natural uncontrollable events, disabling parties from performance when circumstances make it impossible or impractical.
Most commercial contracts contain what is known as a “force majeure clause” which provides for when a party may not perform their contract on the basis of extraordinary circumstances which are beyond their control.
The defence of force majeure is raised by a defendant who has not performed his contractual duties as an excuse for not performing.
This defence is an extraordinary one, which the courts are reluctant to apply except in very limited circumstances.
In the case of Firstel Cellular (Private) Limited v NetOne Cellular (Private) Limited [2015] ZWSC 01, the Court held that:
“It is trite that the courts will be astute not to exonerate a party from performing its obligations under a contract that it has voluntarily entered into at arm’s length. Thus, the suspension of a contractual obligation by dint of vis major or casus fortuitus can only be allowed in very compelling circumstances.
“The courts are enjoined to consider the nature of the contract, the relationship between the parties, the circumstances of the case and the nature of the alleged impossibility. See Watergate (Pvt) Ltd v Commercial Bank of Zimbabwe 2006 (1) ZLR 9 (S) at 14B-F.”
Similarly, in Chinyakata v Crystal Cabs & Another [2015] ZWHHC 660 it was held that:
““As a general rule impossibility brought about by vis major or casus fortuitous will excuse performance of a contract. But it will not always do so.
In each case it is necessary to look to the nature of the contract, the relation of the parties, the circumstances of the case, and the nature of the impossibility invoked by the defendant, to see whether the general rule might, in the particular circumstances of the case, to be applied.
The rule will not avail the defendant if the impossibility is self-created; nor will it avail the defendant if the impossibility is due to his or her fault.”
Where this defence is raised, one must examine the contract, to determine whether a force majeure can be raised as a defence. In the event the contract does not contain a force majeure clause, the defence cannot be invoked.
As set out by Conor Maher: “Because there is no general doctrine of force majeure, the law is clear that no term will be implied into a contract which does not contain an express provision to this effect.
“Equally, the precise wording of the term is vital to establishing whether the clause will apply to an event, and what constitutes a force majeure, an ‘Act of God’, or a ‘vis major’ will often be expressly qualified.”
In the case of Watergate (Pvt) Ltd. v Commercial Bank of Zimbabwe [2006] ZWSC 70, it was held that:
“When the Court has to decide on the effect of impossibility of performance on a contract, the Court should first have regard to the general rule that impossibility of performance does in general excuse the performance of a contract, but does not do so in all cases, and must then look to the nature of the contract, the relation of the parties, the circumstances of the case and the nature of the impossibility to see whether the general rule ought, in the particular circumstances of the case, to be applied.
“In this connection regard must be had not only to the nature of the contract, but also to the causes of the impossibility. If the causes were in the contemplation of the parties, they are generally speaking bound by the contract.
If, on the contrary, they were such as no human foresight could have foreseen, the obligations under the contract are extinguished.”
In practice, if a business cannot deliver goods because of a massive flood, that is a vis major event, which they might invoke to excuse their delay, as the event was uncontrollable and unforeseeable, preventing their performance.
Where a farmer has contracted to supply some agricultural produce and the crops are hit by a massive drought, the drought is a vis major event.
Each case is determined on its own merits to assess whether indeed a party can be excuse from performance on the basis of vis major.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.
