Force majeure : “the precise meaning of this term, if it has one, has eluded the lawyers for years.” Donaldson J, Thomas Borthwick (Glasgow) Ltd v. Bunge & Co Ltd. 1

“It would appear to be the fate of frustration cases when they reach the highest tribunals that either there should be agreement as to the principle but differences as to its application, or difference as to principle but agreement as to its application.” Diplock J, Port Line v. Ben Line Steamers. 2

When dealing with concepts of “force majeure ” and “frustration of contract”, every author (and reader, I must add) will have difficulty in getting some structure in an almost boundless area of the law, a land where the climate seems to be cloudy all day, if not foggy. This description is also applicable to English law, which cannot be an incident. Reference to English textbooks generally does not give much relief, an observation that is supported by the above quotations of two well-known judges. What does one make of the statement of a learned author, and practitioner, Schmitthoff, discussing force majeure clauses, on the concept of force majeure : “this term has a clear meaning in law; it includes every event beyond the control of the parties.” That does not prevent him from continuing: “Sometimes, however, the parties modify the normal meaning of the clause and it is therefore necessary to construe the clause in each case ‘with close attention to the words which precede or follow

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