In the wake of the record snowfall that just hit the Erie area over the Thanksgiving holiday weekend, it’s worth dusting off a legal term that all municipal managers should know – “force majeure.”
In the context of local government, "force majeure" refers to unforeseeable events or circumstances that prevent the government from fulfilling its obligations or carrying out its operations as planned. Its origins are from French civil law as part of the Napoleonic code and translates to "superior force." Here in the United States, its early interpretation was "an act of God." These events are beyond the control of the local government and typically include natural disasters (such as earthquakes, floods, or hurricanes), war, terrorism, epidemics, or other major disruptions. The term “force majeure” is typically used to describe unforeseen circumstances that prevent the ability to fulfill a contract.
When a “force majeure” clause is incorporated into a contract, it serves as a shield for local governments, protecting them from liability if they are unable to fulfill contractual obligations due to unforeseen events. For instance, if a local government is unable to complete a construction project due to a natural disaster, the “force majeure” clause can prevent penalties or breach of contract claims.
Municipalities must have emergency plans and contingencies in place to respond to “force majeure” events. This often involves mobilizing resources, coordinating with other agencies, and activating emergency services. “Force majeure” events can lead to legal disputes over responsibilities and obligations. They may also impact the local government's finances due to unexpected costs for response and recovery efforts, as well as potential loss of revenue.
A “force majeure” can disrupt essential public services, such as water supply, waste management, and transportation. Local governments must ensure the continuity of operations and restore services as quickly as possible. Effective communication with the public is crucial during “force majeure” events. Local governments must provide accurate and timely information to ensure public safety and trust.
Overall, “force majeure” is a critical concept in local government planning and risk management, ensuring that there are protocols in place to deal with unexpected disruptions. When reviewing any legal documents, it is crucial to scrutinize any “force majeure” language. At KMS, we’ve seen the unexpected hit, and we know how to help you prepare for it. So when that next blizzard or 100-year flood hits your community, be sure you have your “force majeure” protections in place before you "fire this thing up."
About the Author
David L. Anthony is a member of the Keystone Municipal Solutions team of experts. He is a veteran of municipal government, having served more than 33 years in various positions of public service. Contact him at david@keystonemunicipalsolutions.com. To learn more about David and the Keystone Municipal Solutions team, click here.
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