Force Majeure Special Conditions
Special conditions for the ABIC SW and ABIC MW contracts introduce the concept of Force Majeure. These special conditions were updated and reissued in early July 2022.
Moray and Agnew developed the following special conditions for ABIC SW 2018 and ABIC MW 2018 contracts on behalf of the ACA. The Force Majeure Special Conditions were originally prepared in early 2020, when the pandemic was in its infancy. At that time, it wasn’t clear what sort of impact the pandemic would have on building sites. We assumed at that time that the effect of the pandemic would be similar to other force majeure events, such as floods or hurricanes; that is, we assumed it would close work sites. This has since proven not to be the case. Rather, the effect has been more to slow the progress of work on site. As a result, most contractors were never “largely or wholly unable to carry out” work on the site as required under clause L7.1. This meant that these Force Majeure Special Conditions never became operative.
We have now removed references to the pandemic as a force majeure event. The purpose of these Special Conditions is now limited to traditional force majeure events, such as floods, earthquakes and hurricanes that effectively make work “largely or wholly” impossible.
Once incorporated into the ABIC SW 2018 or ABIC MW 2018 contracts, the Special Conditions will:
- introduce the concept of a Force Majeure Event
- allow for the owner or the contractor to, in effect, suspend the operation of the contract if a Force Majeure Event causes that party to be unable to carry out its obligations under the contract for a stated period of time
- allow the contractor to claim for time (but no money) where this occurs
- oblige the contractor to make the site safe for the duration of the suspension
- allow for the architect to assess the contractor’s claim for time, and
- allow for either party to terminate the contract if the Force Majeure Event goes on for an extended period.
These Force Majeure Special Conditions work with the following forms of the ABIC contracts:
- The two non-residential ABIC forms, being ABIC SW 2018 and ABIC MW 2018
- The 16 jurisdiction-specific residential forms of the ABIC SW and ABIC MW contracts, being ABIC SW 2018 H ACT, ABIC MW 2018 H ACT, ABIC SW 2018 H NSW, ABIC MW 2018 H NSW, ABIC SW 2018 H NT, ABIC MW 2018 H NT, ABIC SW 2018 H Qld, ABIC MW 2018 H Qld, ABIC SW 2018 H SA, ABIC MW 2018 H SA, ABIC SW 2018 H Tas, ABIC MW 2018 H Tas, ABIC SW 2018 H Vic, ABIC MW 2018 H Vic, ABIC SW 2018 H WA and ABIC MW 2018 H WA.
Note: These Special Conditions are designed to be incorporated into Schedule 2a of the ABIC contracts listed above. They may not be used with any other form of contract.
These Special Conditions were initiated and funded by ACA – NSW/ACT.