This Note will argue that as a matter of law, courts should not apply common law limitations when interpreting catch-all provisions in contractual force majeure clauses. Instead, to properly limit the potential all-encompassing scope of force majeure catch-alls, courts should rely on the more general principles of contract interpretation. Part I of this Note will discuss the common law doctrine of impracticability and how this doctrine became the contractual force majeure clause. This Note will then discuss the elements of a force majeure clause before diving into the catch-all provision. After that, this Note will discuss the limitations courts have placed on force majeure clauses and their catch-all provisions. First, this Note will explain why courts apply the common law limitations of unforeseeability and “control.” Second, this Note will explain the limitations courts have placed on force majeure clauses through the interpretive canons. This Note will focus on two canons: the ejusdem generis doctrine and the doctrine of interpreting contracts as a whole. In Part III, this Note will analyze why limiting the catch-all provision of force majeure clauses through the common law rules of impracticability runs inconsistent with the written intent of the parties. This Note will then formulate new rules on limiting force majeure catch-all provisions by applying the interpretive canons. Lastly, the Note will discuss the implications of changing the rules by looking at two cases, including TEC Olmos, as hypotheticals.
To read this Note, please click here: Eliminating the Common Law Limitations on Force Majeure Clauses.
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