Force majeure provisions are commonly used in commercial contracts to manage and allocate risks relating to a party’s failure to perform its obligations resulting from certain force majeure events. Force majeure events, which are negotiated on a contract-by-contract basis, are typically events that are beyond the nonperforming party’s control, such as acts of God, natural disasters or government actions, that the parties agree should excuse contractual nonperformance.
Force majeure provisions are considered typical boilerplate and as such often receive insufficient attention in contract negotiations. The recent cases of active local transmissions of Zika, the mosquito-borne virus linked to birth defects and Guillaume-Barre syndrome, in South Florida shift the importance of force majeure into renewed focus and raise questions of how Zika interacts with force majeure provisions, most specifically under what circumstances, if any, Zika excuses performance.
