Force majeure clauses in contracts exist to free the contracting parties from liabilities or obligations in circumstances where an event or situation, such as pandemic, prevents that party from fulfilling their obligations under the contract. The recent case of Meetfresh Franchising Pty Ltd v Ivanman Pty Ltd [2020] NSWCA 234 considered whether Meetfresh was liable for losses sustained by Ivanman for failing to honour the terms of their Franchise Agreement, or whether the force majeure clause applied to their Franchise Agreement. Meetfresh had the onus of establishing the applicability of the force majeure clause as they were seeking to rely upon it and it constituted an exception from Meetfresh’s broad contractual liability under the Agreement. The Court considered factors such as the place of the clause in the contract, and the evidence relating to the cause of the breach of the contract. The Justice ultimately held that Meetfresh failed to establish that the force majeure clause applied because there was a distinct lack of evidence about the cause of the event and the appellant’s inability to prevent its occurrence. Additionally, the force majeure clause was included amongst incidental clauses appearing at the end of the agreement, that made it an exception to, rather than a qualification of the appellant’s promises. This case demonstrates the difficulty of relying on force majeure clauses.

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