Can you advise what the difference between Force Majeure & Excepted Risks in a JCT 2016 D&B n particular relating to COVID-19. The Force Majeure Clause has been deleted and replaced with Excepted Risks.
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These 2 concepts are unrelated.
Force Majeure gives you an extension of time in a JCT contract under Clause 2.26.14. It is not defined so we would need to look at a common law definition for an answer. Force Majeure is usually seen as some exterior act that was not anticipated by the parties that releases them from their obligations to perform under a contract. Covid 10 would be a good example but so would a war, other acts of god etc.
Excepted Risks are used in Section 6 of the JCT Contracts which is of course the insurance clause. The Works are normally insured by the Employer or the Contractor and an all risks policy is taken out that insures the Works as they are constructed. The definition of All Risks Insurance excludes “Excepted Risks” which is essentially (a) nuclear bombs (b) sonic waves caused by aircraft or © terrorism.
If as you say the words force majeure have been replaced with Excepted Risks then you have a much narrower set of circumstances in which relief can be claimed under the Contract and these would be limited to the definition of “Excepted Risks”.
I hope this helps.
Hi Mike,
Thanks for your response. Clause 2.26.14 contract amendments states delete the words Force Majeure and replace with Excepted Risks. Do you know if COVID-19 would slot into these circumstances?
No it won’t fall into the definition of Excepted Risks. However I would argue that it would fall within Relevant Event 2.26.12 which is a change in law that directly affects the carrying out of the Works.
Thanks Mike, that is very helpful.