This contract tip is about how you list examples in a force majeure provision matters. That's because how specific event examples sit in a sentence with other words affect the interpretation.
Here are two ways to present a list of force majeure event examples:
“Force Majeure Event means any event outside the party’s control, including fire, war, . . .”
“Force Majeure Event means fire, war, . . . and any event outside the party’s control.”
The first definition is broad. Notice that the list doesn’t limit the definition’s scope but clarifies what falls into it. When I represent vendors, I would prefer to word it this way.
The second definition is narrower. We’ve defined the term using examples and added a catch-all at the end. Courts often interpret that kind of catch-all as limited to those similar to the listed examples. So when I represent customers, I prefer the second way. I’d also probably add the word “similar” before "event" to emphasize the point.
Which way do you prefer?
