Rain - force majeur, act of God?
Rain - force majeur, act of God?
(OP)
I'm working on a project, non-standard conditions of contract. For "bad weather" as the contractor we are referred to a clause covering force majeur (which includes acts of God). But is unseasonally heavy rain covered by such a clause? Of course maybe the contractor has to prove the rain has been heavier, or longer than usual over a period of years. But is there any grounds for an owner just to reject, claiming it is not a force majeur, or act of God event?






RE: Rain - force majeur, act of God?
Michael.
Timing has a lot to do with the outcome of a rain dance.
RE: Rain - force majeur, act of God?
RE: Rain - force majeur, act of God?
Case law is made from 'unreasonable' actions...
Dik
RE: Rain - force majeur, act of God?
In fact in this case the client doesn't care if he's reasonable or not he has the money so he says no. But the rainfall records show that rain is 150% higher than normal. And although it may be the client's own in house form of contract all the usual conditions are there and there is no reason that they should be seen to be particularly onerous for a contractor.
RE: Rain - force majeur, act of God?
If there's no peaceful way to settle it put the owner on record that you're filing a claim and you'll see him in court when the job is over.
RE: Rain - force majeur, act of God?
150% higher than normal probably may not qualify as "force majeure" in my opinion - the flooding is predictable - that is - flooding of this magnitude occurs on a fairly regular basis and in any given year there is a reasonable chance of it happening. However I don't know if the consequences of the flooding were preventable. If you can prove that there was no reasonable way to protect from damage, you might have a case.
RE: Rain - force majeur, act of God?
If the client is unreasonable and you have done things to mitigate delays... both positive. In our locale, courts tend not to favour 'unreasonable'.
It's not the thing that a lawyer could guess, but he would likely have a better idea of the outcome than I would. Even in Canada, we rarely get a unanamous (sp?) decision from our Supreme Court...
Dik
RE: Rain - force majeur, act of God?
RE: Rain - force majeur, act of God?
How is anyone supposed to complete their respective work outdoors if it's raining? Not only are there safety issues associated with working in the rain, but quality will suffer too.
It's probably worth speaking to a lawyer for some feedback. Threatening to lien the project sometimes brings the owner to his senses.
RE: Rain - force majeur, act of God?
Also, have the Contractor prepare a day-by-day summary of jobsite weather and how the rainfall affected his work. (For example, heavy rain on an average of say, once every three days could make ANY earthwork impractical). If the Contractor does not have (or have access to) daily jobsite weather records, then "proving" his case directly to the Owner will likely be very difficult.
If the Owner rejects this type of presentation, then it is time for the lawyers.
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RE: Rain - force majeur, act of God?
That would be helpful to bolster your case. If it's that much more than normal, but has still happened every 5 or 10 years, then you wouldn't have much of a case.
RE: Rain - force majeur, act of God?
Rain of any amount up to the 100 year rainfall/flood is probably not only predictable, but should be expected.
"Heavier and longer than usual" is probably not a reasonable criteria for saying "we had no idea this could happen during the course of this contract."
RE: Rain - force majeur, act of God?
RE: Rain - force majeur, act of God?
Even if the additional rainfall was predictable, which it certainly was. The 3rd criteria "consequences of the event must have been unpreventable" is the legal condition that might be more worthwhile to pursue. If there was no "reasonable" way to prevent the damages to the project or to the contractor, than you might have a legal defense. A reasonable way would be for the contractor to ask and the owner to grant additional days to the schedule to account for the lost time. If it was flooding that caused the damage, than temporary protective works built to industry standards should have been used.
RE: Rain - force majeur, act of God?
doesn't mean you can't have two of them next week...
Dik
RE: Rain - force majeur, act of God?
Then length of rain fall should also be considered not just the amount. intermit rain for 100days of the year is normally consider worse than a flood for 1 day in my region, however we have a 4 year flood cycle in my region.
An expert is a man who has made all the mistakes which can be made in a very narrow field
RE: Rain - force majeur, act of God?
Michael.
Timing has a lot to do with the outcome of a rain dance.
RE: Rain - force majeur, act of God?
At the back of my mind, I had in mind that contract preliminaries were not payable for such EOT - but you would need to verify this with somebody in the legal profession - its has been a little while since I have dealt with any site supervision work.
RE: Rain - force majeur, act of God?
RE: Rain - force majeur, act of God?