If the terms of a contract are not secure (or detectable), the contract is invalid due to imprecision. As long as the execution can be determined (for example. B if performance can be determined by the application of a formula or method), the contract is not void because of imprecision. A party wishing to invoke the common law doctrine of impossibility must prove that the impossibility was caused by an unforeseen event and that the event could not have been foreseen or prevented in the contract. [3] The courts have held that the impossibility of enforcement in the event of an emergency or disaster has excused enforcement in general on the basis of applicable law, government regulations, or disruption of transportation or communication networks. However, the economic consequences of those events do not necessarily give rise to a claim of impossibility. If any of the above pleas have been found to be applicable, the obligations of the party seeking the defence may be fulfilled. [24] However, if impossible or impracticable services were of temporary duration, these teachings would generally excuse performance only as long as the disabling condition persisted. In addition, if performance were excused, the courts could potentially award quantum mercuit claims to the counterparty to adequately offset the gains and losses suffered by the parties. This could require the excused party to reimburse the other party for expenses incurred in anticipation of performance. [25] The purpose of force majeure clauses is to protect the parties against events that are not part of the normal commercial risk. Force majeure clauses release the performance of contractual obligations if certain events beyond the control of the parties have prevented such performance.
If successfully invoked, the clause would excuse the performance of a party`s contractual obligations, thus avoiding a breach. Applicability of force majeure clauses All contracts do not contain a force majeure clause. To the extent that this is included in contracts, there is no standardized form of determination and, therefore, the analysis of the applicability of force majeure clauses is specific to the contract. Canadian courts typically apply a high threshold when determining the applicability of a force majeure clause – they consider several elements: unless a contract expressly provides for a review of the terms of a lease, a reduction in the amount of rent payable, or the termination of the lease in the circumstances of a pandemic, there is no automatic right to: check the conditions. reduce the amount of the rental to be paid or terminate the rental agreement. It is therefore important that the parties first define their legal situation before taking action in relation to their agreements. In South African law, when interpreting a contract, it is first necessary to determine which conditions form part of the contract. A party who claims that a clause is part of a contract bears the burden of proof that the parties intended it to be part of the contract. Although the fault of the party making a false statement is not a prerequisite for misrepresentation, the degree of fault plays a role in the remedies available to the other party. The following remedies are available: Correction exists when a written contract that incorrectly reflects the common will of the parties is corrected to reflect their intent.
The party requesting the correction must prove (1) the common intention of the parties, (2) that the document incorrectly reflects the intent, and (3) that the incorrect record was the result of an error made by the parties. If an agreement contains such a force majeure clause, the parties must invoke the specific provisions of the agreement, and if an agreement does not contain such a clause, the parties must invoke the common law principle of replacing impossibility. The performance of an obligation will not be objectively impossible if that service has simply become more cumbersome, difficult or expensive. However, absolute factual impossibility is not required; Performance may still be objectively impossible if such a service is objectively possible but illegal or if it has become so difficult or incriminating that performance cannot reasonably be expected of the party. The generally acceptable standard of conduct in commercial transactions in the Community in question determines whether enforcement is objectively impossible; The service can be considered legally impossible, when in fact it is still possible. Conversely, if a party has guaranteed performance, the fact that performance later becomes objectively impossible does not relieve that party of its liability. The High Court also held that the Alert Level 5 Regulations specified that employers were not exempt from their obligation to pay their employees` salaries because the list of “essential services” under the Alert Level 5 Regulations included the implementation of payroll systems to ensure timely payments to employees. In addition, the High Court held that employers were allowed to carry out various forms of limited trade under alert levels 5, 4 and 3 (e.g. B the sale of cold food and/or exploitation on the basis of supply), but had not chosen not to be profitable and/or to be more expensive or economically binding in anticipation of this limited trade. The High Court held that this did not relieve employers of their obligation to pay their employees. The High Court further stated that “economic hardship is not considered a force majeure event” because it “does not render enforcement objective and totally impossible.” [11] Both the courts in New York and California treat impracticability as a form of impossibility defense.
See Axginc Corp. v. Plaza Automall, Ltd., 2017 WL 11504930, at *8 (E.D.N.Y. Feb. 21, 2017), aff`d, 759 F. App`x 26, 29 (2d Cir. 2018) (New York courts do not recognize “commercial impracticability as a separate defense against the doctrine of impossibility; On the contrary, impracticability is treated as a kind of impossibility and interpreted in the same limited way. »); Emelianenko v. Affliction Clothing, 2011 WL 13176615, at *28 (C.D. Cal.
June 7, 2011) (“The extension of the meaning of impossibility as a defence […] to include “impracticability” is now widely recognized.”). The 5. In March 2020, the National Institute of Communicable Diseases confirmed that the first suspected case of COVID-19 in South Africa had tested positive. .
