Welcome to The Law for Creatives! My name is Katy Carrier, and I am an attorney specializing in legal services for wedding and event professionals and other creative businesses. I started The Law for Creatives to help creative individuals learn about the legalities of properly structuring, managing and growing their businesses, as well as protecting their creative works.
This blog is made available for educational purposes only, and not to provide specific legal advice. No attorney/client relationship is intended or created by this blog or its use. Any specific legal questions or personal information submitted to this blog through comments or by email will not create an attorney/client relationship, and any such information may not be treated as confidential.
It sometimes takes the threat of natural disasters like hurricanes to get us to take a look at how our contracts handle such situations. This is generally done through what is called the “Force Majeure” or “Acts of God” clause. Often found near the end of a contract, this clause usually states that the parties to the contract (e.g. you and your clients) agree that failure to perform the specified duties in the contract will not constitute a breach of the contract if the failure if caused by “force majeure” (also often referred to an “Act of God”). Force majeure means “greater force” in French, and usually describes natural disasters (hurricanes, earthquakes, serious storms), fires, wars and terrorist acts.
The problem with many force majeure clauses is that while they relieve you from being accused of breaching the contract (which could have otherwise subjected you to having to refund money paid by the clients since you did not do what you said you would do), they don’t spell out what actually happens if a force majeure event occurs. In a normal business contract for goods or services, these details are not as important since you could just deliver the goods or perform the services as soon as possible after the force majeure conditions have ended. Unfortunately, this won’t suffice for an event like a wedding where you are required to perform your duties on a specific date. Instead, you want your contract to state that you will not have a contractual obligation to refund any money or perform the services/deliver the goods on a new date, but in order to be fair to the client, I think it is a good idea to state that you will take reasonable steps to work with the client to perform the services and/or deliver the goods on a new date, subject to the potential for additional fees due from the client. You want to be sure you mention the possibility of additional fees because this could be important depending on your type of business; for a florist, you may have already ordered and received the floral product, and you obviously cannot use those same flowers on the rescheduled date three weeks from the original date. Instead, you might waive any additional labor costs for re-making the floral arrangements, but the clients would still be responsible for the costs incurred in connection with ordering the new flowers. Even if your business only offers services and not goods, you may incur additional costs as a result of having to hire assistants or other workers for a new date, and these costs could be passed on to the client. You also want to be sure it’s clear that you may not personally be present on the rescheduled date and that you can send another professional in your stead (like if you are already booked or otherwise unavailable on the rescheduled date).
Here is a sample clause written for a wedding/event planner client contract. The last sentence references additional costs that may be due to other event vendors; this will help prepare a planner’s clients for the scenario where the florist, cake baker, etc. requires additional payment to perform on the rescheduled date. For non-planner vendors, you would remove the reference to other “Event Vendors” in the last sentence.
Force Majeure: No Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, acts of God (such as hurricanes, earthquakes, flooding), fire, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, terrorist acts, insurrections and/or any other cause beyond the reasonable control of the Party whose performance is affected. Should Clients’ Event be cancelled, postponed or otherwise adversely impacted as a result of a force majeure event, there shall be no refunds for payments already received by Event Planner, but Event Planner will use all reasonable efforts to work with Clients to produce the Event at a later date if necessary, subject to Event Planner’s availability, and a substitute representative may be present on Event Planner’s behalf on the rescheduled date. Additional fees may be incurred and due to Event Planner and/or Event Vendors as a result of a rescheduled Event.
I hope this helps you to understand the force majeure clause a little better and to take proactive steps to protect your business before you’re faced with a natural disaster like a hurricane.
***The above information does not constitute legal advice, and is not a substitute for the services of an attorney in your jurisdiction.***