Force Majeure, Frustration and Impossibility: A Qualitative Empirical Analysis

51 Pages Posted: 6 Aug 2020

See all articles by Smaran Shetty

Smaran Shetty

Columbia Law School; The WB National University of Juridical Sciences

Pranav Budihal

National University of Singapore

Date Written: August 1, 2020

Abstract

A concluded contract may be rendered incapable of performance for a variety of reasons. The incapability of performance raises a variety of important legal questions: Is the claim of incapability acceptable to the counterparty? If not, does the claim meet the standards of force majeure and/or frustration? Does the contract between the parties address the grounds of incapability? Whether performance may be excused without the levy of damages?

Towards that end, this report attempts to draw attention to the core issues in making and resisting a force majeure claim, key decisions of the Supreme Court that have settled the parameters of force majeure, frustration and impossibility and important advancements made by the High Courts. We also offer insights into allied issues in making a force majeure claim that have bearing on the timing, forum and terms on which a force majeure claim may be made.

This report thereafter proceeds to offer empirical insights of the Supreme Court as well as 6 high courts – Delhi, Bombay, Madras, Karnataka, Allahabad and Calcutta. In presenting this information, we assemble a qualitative set of cases that have decided and applied the law on force majeure, frustration, and impossibility. We offer insights into the number of successful force majeure claims and common force majeure events.

Keywords: Force Maejure, Contract Performance, COVID-19, India

Suggested Citation

Shetty, Smaran and Budihal, Pranav, Force Majeure, Frustration and Impossibility: A Qualitative Empirical Analysis (August 1, 2020). Available at SSRN: https://ssrn.com/abstract=3665213 or http://dx.doi.org/10.2139/ssrn.3665213

Smaran Shetty (Contact Author)

Columbia Law School ( email )

435 West 116th St
NEW YORK, NY 10027

The WB National University of Juridical Sciences ( email )

12, LB Block, Sector III
Salt Lake, Kolkata
India

Pranav Budihal

National University of Singapore ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

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