“Force Majeure” – What Happens When the Worst Happens?
When Hurricane Sandy hit the East Coast recently, the resulting power outages, gasoline shortages, flooding, wind damage, and other devastation made it difficult or impossible for businesses in the hurricane’s path to function normally. In fact, one of my clients was featured for its efforts to keep its data center in lower Manhattan running despite loss of power. When the client called me to discuss contingency plans under its lease, the first provision I looked at was “Force Majeure”. Force majeure can come into play in a transactional instance, where it is a fairly standard provision of many contracts, like in my client’s lease, or in a litigation instance, where it can be an affirmative defense to a breach of contract claim. Under Tennessee law, the affirmative defense of force majeure is known as “an Act of God” and “any misadventure or casualty is said to be caused by the […]Continue Reading