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Force Majeure


We’ve been hearing a lot about force majeure clauses potentially providing a basis for avoiding a contract. I’ve not found any Maryland appellate case decision based upon a force majeure clause but I did come across a Supreme Court case – Viterbo v. Friedlander,120 U.S. 7077 (1887). Here are some pertinent parts.

This was a petition, filed October 2, 1884, by a citizen of France against a citizen of Louisiana, to annul a lease of a sugar plantation from the defendant to the petitioner for five years; and alleging that by an extraordinary rise of the Mississippi river, which could not have been foreseen, and without any fault of the lessee, a crevasse was made in the levees of a neighboring plantation, the leased plantation overflowed, all the cane destroyed, and the plantation rendered wholly unfit for the purpose for which it had been leased; and that the petitioner requested the defendant, as soon as the water from the crevasse should have withdrawn, to put back the plantation in the same condition as when leased, and to replace the plant cane and stubble, and the defendant refused to do so. By direction of the circuit court the case was transferred to the chancery side, the petitioner filed a bill in equity, containing similar allegations, and praying for like relief.

The master, after discussing at length the law of the case, concluded and reported that the property leased was not destroyed, and had not ceased to be fit for the purpose for which it was leased; that the loss of the growing crop, the partial filling of the canals and ditches, and the washing away of the bridges, were not caused by an ‘unforeseen event;’ that equity could give no relief to the plaintiff; and that his bill should be dismissed. Exceptions taken by the plaintiff to the master’s report, in regard both to his findings of fact and to his conclusions of law, were overruled by the circuit court, and a decree entered for the defendant dismissing the bill.

The opinion is complex but this part is applicable to force majeure.

Upon a comparison at the English text with the French of so much of the Louisiana Code as bears upon this case, the greater uniformity and precision of the French text, and its striking resemblance to the Code Napoleon, make it quite clear that the French is the original, and the English the translation. Moreover, in the concluding article, 3556, (3522,) of verbal definitions, the French words in the Code of 1825 are arranged alphabetically, with the English equivalent opposite each one, regardless of its own alphabetical order. In the French column ‘cas fortuits’ are defined as ‘evénemens occasionés par une force à laquelle on ne peut pas résister,’ or events caused by a force that one cannot resist; opposite to which, in the English column, is: ‘Fortuitous event is that which happens by a cause which we cannot resist.’ But on turning back to the other articles, we find the French ‘cas fortuit’ rendered in English in various ways; as ‘unforeseen event, as ‘unforeseen accident, as ‘fortuitous event, as ‘fortuitous accident, as ‘accident, and as ‘chance. In one place ‘cas fortuit ou force majeure’ is rendered ‘fortuitous event of irresistible force, and in another, ‘accidental and uncontrollable events; the two alternative expressions as synonymous. In the concluding article, also, ‘force,’ it defined, both in French and in English, as ‘the effect of a power which cannot be resisted;’ and ‘force majeure,’ vis major, as ‘un fait, un accident que la prudence humaine ne peut ni prévoir ni empêcher,’ or a fact or accident which human prudence can neither foresee nor prevent, with a corresponding definition of the English equivalent, ‘superior force.’ ‘Force majeure’ is also rendered in different places ‘unforeseen events, ‘overpowering force, and ‘force, only; ‘événement de force majeure’ as ‘accident; and ‘accidens de force majeure’ as ‘inevitable accident. It cannot be doubted, therefore, that the words ‘unforeseen event’ and ‘accident,’ as used in the articles now under consideration, have the meaning of ‘fortuitous event’ or ‘irresistible force.

The Court reversed – Upon the whole case, we are of opinion that the lease being of a sugar plantation for the purpose of being used to cultivate sugar-cane, the injuries proved to the plantation, and to its capacity for producing cane and sugar, amounted to a partial destruction of the plantation, or, what is the same thing in legal effect, to making it cease to be fit for the purpose for which it was leased; that those injuries were caused by a fortuitous or unforeseen event; and that under articles 2697 (2667) and 2699 (2669) of the Revised Civil Code, construed in the light of the other articles that we have cited, and of the principles of the civil law as established in Louisiana, the plaintiff was entitled to have the lease annulled. The decree of the court below dismissing the bill must therefore be reversed; and any equities of the parties which should affect the form of the decree may more conveniently be dealt with in that court.

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