The Principle of Force Majeure in Contract Law: Nigerian and Comparative Perspectives

■ Introduction

Contract law is built on the principle of pacta sunt servanda, agreements must be kept. Yet absolute enforcement is not always realistic, as unforeseen events can make performance impossible or radically different from what was contemplated. The doctrine of force majeure offers relief in such situations. Originating from French civil law and literally meaning “superior force,” it refers to extraordinary, unforeseeable events beyond the control of the parties which prevent contractual performance.
This article examines the doctrine in both Nigerian law and international practice, highlighting its elements, consequences, comparative nuances, and practical challenges.

■ Conceptual Foundation

In civil law systems, force majeure is codified (e.g., French Civil Code Art. 1218). In common law jurisdictions like England and Nigeria, there is no general doctrine of force majeure. Instead, it applies only where parties expressly include it in their contracts. Absent such a clause, courts rely on the narrower doctrine of frustration.
In Nigeria, the Supreme Court in Araka v. Monier Construction Co. (1978) 2 LRN 210 affirmed that frustration operates when unforeseen circumstances make contractual performance impossible or illegal. However, the doctrine of frustration is narrower than force majeure and does not excuse performance merely because it has become more difficult or unprofitable.

■ Elements of Force Majeure

For an event to qualify as force majeure, both Nigerian courts (where a clause exists) and international tribunals usually look at three conditions:
1. Externality: The event must be beyond the control of the party relying on it.
2. Unforeseeability: It must not have been reasonably foreseen at the time of contracting.
3. Irresistibility: The effects must be unavoidable and must prevent, not just hinder, performance.

Examples include:
○ Natural disasters (earthquakes, floods).
○ War, terrorism, or political unrest.
○ Acts of government (embargoes, expropriation, COVID-19 lockdowns).

■ Nigerian Context: Force Majeure Clauses

In Nigeria, force majeure is not implied by law, it must be written into the contract. Courts will strictly construe such clauses. For instance:
In GLO v. Reiss Engineering Ltd (2017) LPELR-43893 (CA), the Court of Appeal held that where a force majeure clause is present, its wording determines whether an event qualifies.
Nigerian oil and gas contracts, particularly Production Sharing Contracts (PSCs) and Joint Venture Agreements (JVAs), often include force majeure provisions given the sector’s exposure to strikes, pipeline sabotage, and regulatory shifts.
Where no clause exists, parties may rely on frustration, but as seen in Davis Contractors Ltd v. Fareham UDC (1956) AC 696 (applied in Nigeria), mere hardship or loss of profitability is insufficient.

● Comparative and International Perspectives

English Law: No general doctrine of force majeure. Relief is clause-dependent; otherwise, frustration applies narrowly (Taylor v. Caldwell (1863)).
Civil Law (France, Germany, etc.): Force majeure is codified and broader in scope, allowing courts to relieve or adapt contracts when performance is impossible.

● International Commercial Law:

United Nations Convention on Contracts for the International Sale of Goods (CISG Art. 79) excuses liability for failure to perform due to impediments beyond control.

(UNIDROIT Principles) UNIDROIT Principles of International Commercial Contracts (Art. 7.1.7) recognize force majeure and also allow adaptation.

The International Chamber of Commerce (ICC) Model Force Majeure Clause provides standardized guidance for transnational contracts.

■ Legal Consequences

When a valid force majeure clause applies, consequences may include:

1. Suspension of obligations during the event.
2. Exemption from liability for non-performance.
3. Right to terminate if the event persists beyond a defined period.
4. Renegotiation in certain international frameworks (e.g., UNIDROIT).

In Nigeria, the courts will apply these outcomes only to the extent expressly provided in the contract.

■ Beyond Law: Force Majeure in Society and Ethics

Force majeure has philosophical significance beyond contract law. It reflects society’s acknowledgment that human will is subject to forces beyond control. For example:

1. Governments invoke emergency powers (curfews, suspensions of obligations) during crises.
2. Businesses adopt risk-sharing clauses to manage volatility.
3. In personal ethics, it echoes the idea that individuals cannot be held accountable for truly uncontrollable circumstances.

■ Criticisms and Challenges
1. Strict Construction in Nigeria: Courts interpret clauses narrowly, often leaving parties without relief.
2. Risk of Abuse: Opportunistic invocation during economic downturns.
3. Changing Risks: Modern threats like cyberattacks, climate change, and pandemics may not be captured in traditional force majeure wording.
■ Conclusion

The principle of force majeure balances the sanctity of contracts with fairness in the face of unforeseen disruptions. While civil law systems recognize it as a general doctrine, common law jurisdictions like Nigeria treat it as a contractual creation. The Nigerian judiciary enforces it strictly, but also recognizes frustration in limited circumstances.
In an era of global uncertainty, climate crises, pandemics, geopolitical instability, force majeure remains an essential legal and ethical principle. Nigerian law would benefit from clearer statutory guidance or judicial expansion to accommodate modern commercial realities, while still maintaining contractual discipline.