Exceeding the delivery deadline by corona: when is force majeure?

The corona crisis. Everyone is suffering from it. Does this justify a contractor's claim of force majeure? This question is answered below. We already discussed other contractual and legal options in other articles, such as an appeal unworkable days, the rules of the UAV and other inputs.

What is force majeure?

Force majeure exists if (for example) the delivery deadline is not met due to a situation that arose through no fault of the contractor and also should not be at the contractor's risk. If a contractor can successfully invoke force majeure, the client cannot claim performance. In short, if there is force majeure, the principal cannot claim damages/penalties.

Note: parties may agree that a penalty is also due in the event of force majeure - however, this is not the starting point.

Does coronavirus lead to supremacy?

These times of crisis can lead to force majeure. This depends - as always - on the specific circumstances of the case. For a successful claim of force majeure, the following requirements apply:

I Timely delivery is no longer possible;

Fulfillment impossible or requires impossible effort

Not only when timely delivery (i.e., "fulfilling" the contract) is utterly impossible, but also if fulfillment by the contractor requires a practically impossible amount of effort or sacrifice, requirement I for force majeure is met. This can occur, for example, when the government decides to impose restrictions on imports and exports. These government measures may prevent a contractor from meeting the agreed delivery date.

Moral impossibility

It may also be that it is morally impossible to meet the completion date. Moral impossibility exists if performance would pose an immediate and serious danger to health, among other things. The contractor must then demonstrate that it can only perform on time by endangering itself and/or others, such as the health of its employees. This is a tough requirement, which does not (yet) seem to be able to be met.

II The reason for this is beyond the contractor's control;

Compliance with RIVM measures.

It is advisable to comply with the measures of the RIVM. Examples of measures of the RIVM are: keep 1.5 meters away from each other and stay at home in case of cold symptoms. If the precautionary measures are not complied with, an appeal to force majeure may be made more difficult. After all, a contractor has then influenced the spread of the virus, so the delay may have been within the contractor's control.

But, note that there is no government regulation that compels one to go beyond the measures of the RIVM. If, as a precautionary measure, a contractor leaves workers at home without cold symptoms and this results in delays, a claim of force majeure is unlikely to succeed. In fact, this decision is within a contractor's sphere of influence.

A contractor must record the measures taken in the H&S plan and must record how the measures are followed up. If the construction then runs out of time; then the file is in order.

III The contractor could not avoid exceeding the delivery deadline;

A contractor should avoid delay as much as possible and explore reasonable alternatives. For example, if a subcontractor fails due to corona measures, the contractor should investigate whether another subcontractor can be used to avoid delay. In doing so, however, it is important to check what impact employing an alternative will have on the current contract. The current contract with the first subcontractor may have to be terminated first.

IV During contracting, the corona crisis was not foreseeable;

It is important that at the time the contracting agreement was concluded, the delay caused by measures due to the corona virus was not foreseeable for the contractor. In that case, the contractor could factor the costs into the agreed price. If you are about to sign a building contract, take into account the possible consequences of the coronavirus and include a provision for it. For more information, see sub 3 of colleague Stefan Kloots ' blog.

V Damage from exceeding the completion date shall not be borne by contractor

Contractual

The parties can stipulate in their agreement what is (and what is not) considered force majeure and is the responsibility of the contractor. Always check the concluded agreement first.

 UAV

If contracted on the basis of the UAV, a successful invocation of force majeure results in a contractor being entitled to a postponement of the agreed delivery date (section 8 paragraph 5 UAV). Furthermore, force majeure may be reason that no discount is due for exceeding construction time (Article 42 paragraph 3 UAV). The specifications may exclude the application of Article 42 paragraph 3 UAV (force majeure), but this does not mean that the contractor can no longer invoke force majeure. In fact, an appeal to force majeure is also possible under Dutch law. Therefore, the exclusion of an appeal to force majeure should be very explicit.

Conventions in circulation

Customary views may imply that an overrun should be imputed to the contractor. Whether this is the case depends on the circumstances of each given case. An example is financial insolvency; this generally does not constitute a successful claim of force majeure.

Closure and tips for practice

As a general matter, it is impossible to say whether the corona crisis at hand constitutes force majeure. It depends on the specific circumstances of the case. Nevertheless, in these noisy times, a claim of force majeure will succeed more often than usual.

Are these five requirements met? Then the contractor can successfully invoke force majeure.

Four concrete tips for the contractor inconvenienced during the corona crisis:

1. The contractor should comply with the measures of the RIVM and try to avoid delays as much as possible.
2. Warn as early as possible of any delays in construction or completion dates.
3. Map in detail what specific (government) measures cause delay and why it cannot be resolved through a reasonable alternative.
4. Engage with the client in a timely manner if it is expected that the delivery deadline cannot be met due to the corona virus. After all, this special time calls for joint solutions in good consultation.

If you have questions about force majeure in your specific situation. Please feel free to contact us, the attorneys of team construction will be happy to help!