Proposed Force Majeure Clause for Construction Contracts under Civil and Common Laws

Ezeldin, A. Samer; Helw, Amr Abu

doi:10.1061/(asce)la.1943-4170.0000255

Cited by 25 publications

(17 citation statements)

References 13 publications

Supporting

Mentioning

Contrasting

Unclassified

Order By: Relevance

“…Sözleşmede salgın hastalık mücbir sebep olarak belirtilmemişse Covid-19 virüsü nedeniyle aksayan süreç sonunda hak talebinin nasıl olacağı, nasıl başvuru yapılacağı ve kimin değerlendireceği gibi konuların belirsizliklere dolayısı ile uyuşmazlıklara neden olması muhtemeldir. Örneğin, mahkemeler genellikle mücbir sebep hükümlerini sadece listelenen olayları kapsayacak şekilde dar bir şekilde yorumlama eğiliminde olmakta [9] ve epidemik, pandemik veya salgın hastalık terimleri nadiren mücbir sebep olaylarından biri olarak sözleşmelerde listelenmektedir [7]. Covid-19'a bağlı yaşanan uyuşmazlıkların çözümü içinse, taraflar mücbir sebep hükümlerinin sözleşmeye dahil edilip edilmediğini ve bu konuda sözleşme tarafına hangi yaptırımların ve yükümlülüklerin sağlandığını belirlemek için sözleşmelerini dikkatle incelemelidir.…”

Section: Sözleşme Ve Hak Talepleri Kaynaklı Uyuşmazlık Etmenleri (Dispute Factors Arising From Contract and Claims)unclassified

Investigation of dispute factors and effects on construction projects arising from Covid-19 pandemic as a force majeure event

Aladağ

Demirdöğen

Işık

2021

Gazi Üniversitesi Mühendislik Mimarlık Fakültesi Dergisi

View full text Add to dashboard Cite

Investigation of the dispute factors and their effects on construction projects that are arising from Covid-19  Determination of the relations between the dispute factors and their effects using Structural Equation Modeling (SEM) method  Identification of approaches that should be applied to reduce the effects of the disputes arising from Covid-19 in construction projectsFigure A. Results of Structural Equation Modeling AnalysisPurpose: The purpose of this study is to investigate the effects of Covid-19 on the construction projects in terms of contractual relations between the parties of construction projects.Theory and Methods: Within the scope of this study, data was collected from a total number of 173 construction projects that were carried out by Turkish construction companies. Then, collected data was analyzed by using Structural Equation Modeling (SEM) method to determinate the relations between the dispute factors and their effects that are arising from Covid-19 as a force majeure factor.Results: Results of the SEM analysis show that "dispute factors arising from contract and claims" affect "project-based dispute factors" whereas "project-based dispute factors" affect "dispute factors arising from financial factors". Key dispute factors to be cognizant of are "progress payments", "failure in claim notifications of contractors within the relevant period following the occurrence of pandemic in written form" and "failure in implementing quality monitoring and control processes due to lack of personnel" with the highest factor loadings in their clusters. Among the effects of dispute factors arising from Covid-19, impact on project duration (time extension) has emerged as the most prominent effect in comparison with cost overruns, termination and suspension of work, and appeal to court/arbitration. Conclusion:Despite the unforeseen nature of the Covid-19 pandemic, contractors could still be contractually responsible for delays or cost overruns on their current projects in the long term. It is expected that both contractors and owners will be carefully reviewing contracts to identify where contractual rights and duties exist under the conditions caused by the virus' spread. It is recommended that parties review their contracts and take specific note of any force majeure provisions that prevent possible disputes arising from Covid-19. In this context, the results of the study are important in terms of revealing how construction companies are affected in the short term due to Covid-19, as well as in terms of revealing measures that should be considered by construction companies in order to reduce the effects of possible dispute factors that may arise from Covid-19 in their future contracts.

show abstract

Section: Sözleşme Ve Hak Talepleri Kaynaklı Uyuşmazlık Etmenleri (Dispute Factors Arising From Contract and Claims)unclassified

Investigation of dispute factors and effects on construction projects arising from Covid-19 pandemic as a force majeure event

Aladağ

Demirdöğen

Işık

2021

Gazi Üniversitesi Mühendislik Mimarlık Fakültesi Dergisi

View full text Add to dashboard Cite

show abstract

“…Force majeure is a civil law concept (Ezeldin & Helw, 2018) since it was originated from the French Law known as Code Civil. It is a legal concept that exists in many civil law jurisdictions all over the world (Akbiyikli, Dikmen & Eaton, 2011).…”

Section: Force Majeure Clausementioning

confidence: 99%

“…An event is considered as a force majeure event if it is external, unexpected, and unavoidable (Azfar, 2012;Ezeldin & Helw, 2018). There are two common consequences of force majeure events, i.e.…”

Section: Force Majeure Clausementioning

confidence: 99%

“…There are two common consequences of force majeure events, i.e. termination and suspension of the project (Hagedoorn & Hesen, 2007;Ezeldin & Helw, 2018). If a force majeure event leads to project termination, each party bears his own risk and consequences.…”

Section: Force Majeure Clausementioning

confidence: 99%

“…Force majeure is one of the most critical risks in the construction activities. Although the term 'force majeure' is often found in construction contracts, the requirements to apply its principle vary worldwide (Ezeldin & Helw, 2018). Therefore, this section discusses the definitions and requirements of force majeure in different jurisdictions and standard forms.…”

Section: Finding 1: What Constitute a Force Majeure?mentioning

confidence: 99%

See 2 more Smart Citations

Does the COVID-19 Outbreak Constitute a Force Majeure Event? A Pandemic Impact on Construction Contracts

Hansen

2020

Journal of the Civil Engineering Forum

View full text Add to dashboard Cite

The emergence of novel coronavirus disease 2019 (COVID-19) at the end of 2019 has transformed from an epidemic to a pandemic disaster. As of 12 April 2020, this outbreak has spread to more than 210 countries and territories and caused 108,837 deaths. The development of this outbreak has resulted in the closure of several major cities in the world (such as Wuhan, Daegu, and Manila) to country-wide lockdowns as observed in Italy and Malaysia. This also affects the construction sector as a labor-intensive industry. Force majeure has become one of the critical points of discussion, considering that this provision allows a contract party to hinder from fulfilling its obligations on the grounds that events are beyond a party’s control. Nevertheless, the application of this provision often faces challenges considering that in prior legal cases, the Courts tend to interpret this clause narrowly. Thus, it would be problematic when the force majeure clause does not include an epidemic outbreak as a force majeure event in the contract. This paper aims to explore the potential of the COVID-19 outbreak as a force majeure event in construction contracts. A qualitative approach consisting of two-step interdependent methods was done to highlight the fundamental elements of force majeure and to analyze whether the COVID-19 outbreak constitutes a force majeure event or not. Finally, a decision model was developed to assist the contracting parties in determining the COVID-19 outbreak potential as a force majeure event. This paper contributes since research related to the impacts of epidemic or pandemic outbreaks on the construction industry has not been intensified.

show abstract

Impact of Coronavirus Pandemic Crisis on Construction Control Processes in Egypt

Essa

Ibrahim

Mahdi

2022

Advanced Technologies for Humanity

View full text Add to dashboard Cite

Proposed Force Majeure Clause for Construction Contracts under Civil and Common Laws

Cited by 25 publications

References 13 publications

Investigation of dispute factors and effects on construction projects arising from Covid-19 pandemic as a force majeure event

Investigation of dispute factors and effects on construction projects arising from Covid-19 pandemic as a force majeure event

Does the COVID-19 Outbreak Constitute a Force Majeure Event? A Pandemic Impact on Construction Contracts

Impact of Coronavirus Pandemic Crisis on Construction Control Processes in Egypt

Contact Info

Product

Resources

About