Friday, September 20, 2013

Superimposed after the fact

In a linkedIN group someone asked what the meaning of this was as they were translating a contract. Since it was unusual I decided to post my response.

The language was included as part of the force majeure clause and one of the force majeure events described was "governmental regulations superimposed after the fact". "Superimposed" means layed on after the fact. Since the contract is effective on the date signed, the "after the fact” is referring to after the execution of the contract. The key in the clause is what does a force majeure event provide? Most force majeure events only provide for an excusable delay in performance. In that context, I would interpret the language to mean that the party proposing it wants an excusable delay in performance if there are any new governmental regulations that are enacted after the execution of the contract.

As governments are constantly publishing new regulations the language was extremely vague. It could be interpreted to give an excusable delay for any new regulations issued. For an item to be a force majeure event I want to see both a cause and effect creates a delay in performance. To do that I would first want it clarified to make sure that the regulations actually apply to the work being performed. I would also want to ensure that complying with those new applicable regulations actually causes a delay in performance.

If I agreed to allow for governmental regulations as a force majeure event, I would want to make it clear what I was agreeing to such as:
"Any governmental regulation enacted after the date of the execution of this Agreement shall be deemed a force majeure event if compliance with the regulation is required for the performance of work and compliance with the regulation causes a delay in performance.”