Another difference between frustration and force majeure is that English law does not prevent a party from relying on an FM clause concerning an event that existed at the time of the conclusion of the contract (as long as the FM event is covered by its terms), whereas frustration only applies to a higher event. In addition, in the event of frustration, an event must have been unforeseen, whereas an FM clause may be invoked even if the party claiming to be involved in the FM event could reasonably have taken it into account at the time of the conclusion of the contract. It is also important to distinguish between clauses that require an FM event to completely prevent performance and those that cover an FM event that only hinders or delays performance. If the clause requires that the performance be prevented before a party is excused by its contractual obligations, this means that the risk of a delay and its consequences has been transferred to the party whose performance was expected. For example, in the case of a spot or long-term sales contract or a contract involving participation in the internal market aspects of production or transport. If you sell in a contract chain, are the provisions on force majeure drafted uniformly? Often, the wording at the top of the chain can be strongly in the seller`s interest, but it can be much more lax at the bottom, which can leave middle traders open to unexpected engagements. Conversely, a well-formulated clause can place a party in a chain in a strong negotiating position in the event of a previously identified event. There are also provisions that resemble FM clauses and are sometimes found in commercial contracts. Such a clause is an essential detrimental amendment clause. == also has a number of laws known as the Uniform Commercial Code (UCC) and may also excuse the performance of a domestic contractor (or an agreement governed by U.S.
law) as part of the contract. In the context of a contract for the purchase of goods, UZK apologizes for the performance if the service is rendered “inapplicable” in good faith by (1) the “non-entry of an event on the basis of which the contract was concluded”, or (2) “inapplicable” to compliance with foreign or national State rules. Unlike the impossibility of defense, this is a much lower standard and theoretically allows a party to show that if performance is not impossible, it has become prohibitive to honor the contract. . . .