Relying on force majeure clauses
21 April 2020
As early as possible in your communications with parents about the service that can be provided during school closures and any fee reductions proposed, schools should also consider whether they should rely on the force majeure clauses in their parent/school contracts. Force majeure clauses vary and so the precise terms of each must be considered. However, most, if not all, of them will include the current pandemic and the government restrictions in their definition of force majeure.
Force majeure clauses excuse schools from liability for breach of contract where they are unable to perform their contractual obligations either at all or on time. In the absence of such clauses, parents could sue for breach of contract and recover damages for the loss sustained by them as a result of the breach. That loss will not necessarily be limited to any waiver of fees or fee discounts that the school decides to give and so it is a good idea to invoke a force majeure clause if you can do so in a way that will not cause greater dissatisfaction among parents.
In determining whether a school cannot meet its contractual obligations, it is crucial to review those obligations carefully to assess exactly what they require of the school. Some will be express obligations while others will be implied from the terms of the contract in which case their precise scope will be harder to determine. Some will be absolute obligations while others will be qualified, for example, by a requirement to do what is reasonable in the circumstances. Schools are more likely to be able to continue to comply with qualified obligations than absolute ones.
Most force majeure clauses make reliance on them conditional on providing notice to parents and it is important to check precisely what the notice should contain and when it must be provided.
If you would like any advice on whether you should invoke the force majeure clause in your contract and, if so, how, please do not hesitate to contact Vicky Wilson or your usual Wilsons contact.
