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.
Shetty, Smaran and Budihal, Pranav, Force Majeure, Frustration and Impossibility: A Qualitative Empirical Analysis (August 1, 2020).