Changes of Fortune, Changes of Culture: Force Majeure Clauses

Most contracts written in English contain a clause named “Force Majeure”. The term is imported from French and the notion can be traced back to the Roman Empire, which included, at some point, both Great Britain and France. The logical assumption would be, then, that Force Majeure clauses are similar in both languages. It would be simple, wouldn’t it? It would make a translator’s job easy, wouldn’t it? Well, that’s not the way it is.

Let’s start by defining what Force Majeure is. A Force Majeure event waives a person’s responsibility to perform their duties according to the contract they signed (this person is usually called a “party”). The French Civil Code states that Force Majeure events are “unforeseeable, irresistible and exterior” (art. 1148) to the party. This is intended as a guideline to imagine whether a given event is, indeed, Force Majeure. The reader is implicitly trusted to be reasonable in their interpretation. English contracts have the opposite approach: their clause lists events, thus reducing the margin for interpretation.

The original Roman clauses included, among other, earthquakes, floods and pirate ship attacks. These dangers still exist today, although sea piracy is much restricted geographically, and almost never mentioned in contemporary Force Majeure clauses. Instead, they enumerate strikes, lock-outs and the mysterious “act of God”. And this is where a French translator will scratch their head, sigh, and dive in research.

A translator bravely launching in research work: artist’s view (image taken from The Pirates! In An Adventure With Scientists!, directed by Peter Lord and Jeff Newitt, based on a story by Gilden Defoe)

The phrase originated in religious texts of the 13th century in Great Britain and progressively found its way into legal documents. It was mentioned in a 1803 ruling and by the mid-19th century, it was widely used in commercial contracts. “Acts of God” describes acts that do not have a human origin, and that are attributed to God as a consequence, for want of a better explanation. Examples given are frequently natural phenomena such as storms.

To come across this phrase for the first time can be profoundly awkward for a translator steeped in a secular culture, as in France, where state and religion are separate since 1905. After all, the United Kingdom still has an official religion and the United States require that their president swear an oath on the Bible; in these countries, qualifying an event of “act of God” should not be as shocking as it is in France.

So, how can one translate “act of God”? First and foremost, there is no real equivalence. It is advisable to include the original term in parentheses after the phrase chosen for translation. The audience intended for a legal translation knows that there is an original version and, often, that the original will prevail over the translation should a conflict of interpretation arise.

Then, as instances of acts of God are natural phenomena, it is possible to translate it as “catastrophes naturelles (act of God)”. The problem is that English contracts often list natural catastrophes such as storms, floods, fires, etc. One runs the risks of repeating oneself.

Another possibility is to use the term “cas fortuit”, or literally “fortuitous case”. In French law, this notion cannot be separated from Force Majeure and it means that the cause of the event is not known. Acts of God are attributed to God “by default”. Therefore, it can be acceptable to mention “cas fortuit (act of God)”, to indicate that the cause is not known, but definitely not human.

Force Majeure clauses also foresee acts of government. This expression is fairly straightforward, but is has a tricky French counterpart: “fait du Prince”.

This phrase can be included in the larger category of “imprévisible” (that which cannot be foreseen) designating specifically an act of the government that could not have been predicted.

Yet “fait du prince” — which is undoubtedly a relic of the past since France has not been a monarchy since more than a century — can have two different implications. In administrative law, and contracts where administration is a party, it implies that the administration is liable to indemnify the other party for any damage caused. Force Majeure clauses list cases where parties can be exonerated from their duties, don’t they? Then, in such cases, “fait du prince” cannot be used.

In private law, on the contrary, it can be used to translate “acts of Government” since it exonerates a party of their responsibility to perform their duties. One specific instance could be the French government’s decision to open up the online gambling market. Had the Parliament refused to approve the law, contrary to expectations, agreements regarding online gambling in France could not have been enforced and this would have been due to a Force Majeure event.

Force Majeure. Two words and one concept shared across two neighbouring countries. Two very different wordings: on the one hand, a concise set of guidelines for interpretation, on the other, a long list of concrete examples with one “trump card”, as it were, leaving room for the as-yet unimagined. This is the sort of hurdles a translator must overcome to do their deceptively simple work.

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