Force Majeure in Contracts: Protecting Yourself in Kuwait

What Qualifies as Force Majeure?

The law does not provide an exhaustive list of force majeure events; the criterion is unforeseeable impossibility of performance. Wars, natural disasters, and decisions by public authorities that prevent performance are common examples.

A distinction must be drawn between absolute impossibility, which makes performance impossible, and severe difficulty, which makes performance onerous for the debtor (unforeseen hardship). Each is governed by different rules under the Civil Code.

The Effect of Force Majeure on a Contract

When force majeure occurs, the obligation is extinguished and liability for non-performance falls away. However, the debtor must immediately notify the creditor of the force majeure event.

If the obligation forms part of a contract imposing obligations on both parties, the contract may be automatically terminated or the corresponding obligation extinguished, depending on the nature of the contract and the circumstances.

Unforeseen Hardship: The Doctrine of Unforeseen Circumstances

Unforeseen hardship differs from force majeure in that it makes performance excessively onerous rather than impossible. In this situation, a judge may adjust the obligation to restore balance between the parties.

The Kuwaiti Civil Code gives judges the power to intervene to restore contractual balance in such circumstances, protecting contracting parties from the total loss of their interests due to changes beyond their control.

The Importance of Contractual Provisions on Force Majeure

Rather than leaving the matter open to interpretation, it is advisable to define precisely in the contract what qualifies as force majeure. This gives the parties clarity on how to act when a crisis occurs.

The parties may agree on a mechanism for terminating or temporarily suspending the contract when force majeure occurs. This is sound commercial practice that protects everyone's interests.

Legal Assistance with Contract Drafting

At Fahad Al Haddad Law Firm, we review your contracts to ensure they contain clauses that protect your interests in the event of force majeure or unforeseen hardship.

Do not leave the future of your business to chance; contact us to ensure your contracts are robust and capable of addressing unexpected challenges.

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