Here in South Florida, the issue of a force majeure clause within a commercial contract is a very important one. The vulnerability of Miami-Dade, Broward, and Palm Beach counties to hurricane-induced disruptions means that a tropical system has the ability to impair greatly your ability to satisfy the promises you made in your commercial contract, which is why you need the right force majeure clause in your agreement and the right South Florida contract lawyer negotiating, drafting, and litigating on your behalf.
Of course, on the flip side, you may also find yourself in the position of seeking to defeat a force majeure defense in your breach of contract case. Again, the right legal team can help you get that done and get the damages award your business needs.
To win a force majeure defense, the entity you’ve sued has to affirmatively prove that the thing that rendered it unable to perform as promised was a force outside its control. If it doesn’t prove that, then the defense fails.
A case from southwest Florida shows what defeating a force majeure defense can look like. In that breach of contract case, a Charlotte County citrus grove obtained a 2014 grant from the U.S. Department of Agriculture. The grant money was contingent upon the grove planting 25,000 trees by Dec. 31, 2015. To that end, the grove inked a contract with a seller of trees in August 2014. The seller agreed to sell the grove 25,000 trees for delivery in the summer of 2015.
In March 2015, many of the trees earmarked for the grove suffered damage when “a ventilation system was turned off overnight” at one of the seller’s greenhouses. The seller did not deliver trees to the grove in the summer of 2015; in fact, most of the trees weren’t ready until the spring of 2016.
The USDA withdrew the grant, so the grove canceled the contract and demanded the return of its $100,000 deposit. The seller refused, so the grove sued for breach of contract.
The grove, according to the appeals court, was entitled to judgment in its favor despite the seller’s assertion of a force majeure defense. In this case, the “force” was the overnight shut-off of the greenhouse’s ventilation system. The trial court explicitly found that “no competent, substantial evidence established the cause of the ventilation system shut-off.”
The Defendant Has to Prove the Force Was Outside Its Control
The law says that the seller had the burden of providing competent, substantial proof that the shut-off was outside its control. In this case, the seller offered no evidence about the cause being either within or outside its control. As a result, its force majeure defense necessarily failed and the grove was entitled to a judgment in its favor.
The court also pointed out that, to win when you’re asserting a force majeure defense, you must not only have incurred a force outside your control but also must have performed in accordance with the terms of your contract. In this case, the seller delayed delivery by almost a year. The parties’ agreement did not call for that type of conduct in the event of a force majeure; rather, it dictated that the seller would deliver a smaller number of trees at a lower price. The seller’s failure to do that served as additional proof in favor of the grove’s case.
Whether you’re negotiating a force majeure clause, litigating a force majeure issue, or dealing with some other commercial contract matter, you need the right legal team on your side. The skilled South Florida commercial litigation attorneys at Stok Kon + Braverman have the skills, the experience, and the knowledge you need to protect your business’s interests before, during, and after trial.
Contact us online or by calling (954) 237-1777 to schedule your consultation.