CIVIL AND COMMON LAW DIFFERENCES

In many civil law jurisdictions, the legal definition of Force Majeure requires that the event is unforeseeable and unavoidable from the point of view of the party whose obligations are affected. Contracting Authorities in these jurisdictions therefore often want to include these requirements in the contractual Force Majeure definition, coupled with a reasonableness test as regards a party's inability to control and/or prevent an event, even if it is in fact foreseeable. See Section 1.4, Sample Drafting 1, Clause (1)(b).

While Section 1.4, Sample Drafting 1 illustrates this civil law approach, PPP Contracts in common law jurisdictions would not typically include this concept of foreseeability, nor would they in some civil law jurisdictions (e.g. the Netherlands). See Section 1.5, Sample Drafting 1A. However, in some cases the extent to which the impact of the Force Majeure Event could have been reasonably prevented/mitigated may be key in determining entitlement to relief from breach of contract18.