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Superior Forces

Lawyers all over the country are brushing up on a legal doctrine called Force Majeure. Why? Because it is the key lens for viewing deals disrupted by the pandemic. Since COVID-19 is disrupting almost all human interactions, Force Majeure and related doctrines are well worth examining. If you haven’t already, you’ll be hearing the phrase soon – and often.

When the Law names a concept or a doctrine, it usually resorts to Latin. You may have heard phrases like quid pro quo (“this for that”) or res ipsa loquitur (“the thing speaks for itself”) bandied about recently, for example. Force Majeure is French (“superior force”). So, there’s that.

What really makes Force Majeure interesting and not only for lawyers, though, is how aspects of the doctrine relate to our every-day approach in facing adversity. There are lessons for life in considering what matters here. (No, it’s not that hordes of readers are combing the Internet for posts on the law of Contracts. And no, what follows is not legal advice, obviously.) So, what is it?

The Concept

In ordering our affairs, we seek to hold each other, and ourselves, to doing what we promise to do. Courts are not pleased with those who breach contracts, and assess money damages for doing so. We value promise-keeping.

What happens, though, when an abnormal, outside event prevents one or both sides of an agreement from doing what they promised? That is, if a force superior to the parties’ intent intervenes? (Note: we’ll refer to this simply as the “event”. Also, to do what was promised is to “perform”.)

If someone has a contract with a town or a county to fix a road’s potholes (don’t we wish!) and an earthquake destroys the road, what happens to each side’s obligations? Or if one is hired to paint a barn that burns to the ground? The possibilities of events beyond the parties’ control (whether the cause be nature – floods, earthquakes – or mankind – terror attacks, war) are endless. The potential for complexity far exceeding these plain examples is limited only by the scope of our entanglements.

Sophisticated written contracts often contain Force Majeure clauses. In them, a parade of catastrophes is listed with some attempt to agree in advance who gets to skip, change, or delay performance – and under what circumstances. Some clauses include a catch-all provision to deal with events not mentioned.

After The Event

After the event occurs, if everyone agrees what should happen next, there’s no legal problem. (There are always the hardships and heartaches involved in picking up the pieces, unfortunately.) When the parties disagree, however, even after trying mediation, the courts ultimately must decide.  Was the event a Force Majeure? If so, how does it affect what the parties promised to do?

If there is a contract with a Force Majeure clause, the court will interpret and enforce that language. As in many areas of law, state law will govern. While that means the law will vary some, certain kinds of issues generally will matter:

  • If not completely unforeseen, the extent to which the event was unavoidable or not within the control of the parties  
  • Whether the event directly caused the inability to perform
  • To what extent there was a true inability to perform
  • Whether there were any attempts to perform
  • If the doctrine applies, what the appropriate remedy should be

The burden of proof is on any party seeking to invoke Force Majeure. Obviously the cases will depend on their facts, but there’s no doubt that COVID-19 will present numerous, daunting legal problems.

When There Is No Force Majeure Clause

It is possible to have either (a) an enforceable contract that is verbal rather than written, or (b) a written contract that does not contain a Force Majeure clause. Either way, there may still be a remedy. To address this very briefly, two similar doctrines of law have evolved in our so-called “common law”, on a case-by-case basis.

Impracticability is not just impracticality with an extra syllable, so lawyers can have another word nobody else says. It means something is beyond simply not practical to do, even if not quite impossible. If impracticable, it can’t be put into practice under the circumstances. So, parties invoking the doctrine must show the event to have been beyond their control and destructive to one or more of the contract’s essential assumptions.

Then there is Frustration. This is not exactly what Muddy Waters was singing about in “I Can’t Be Satisfied”, later inspiring the Rolling Stones’ “(I Can’t Get No) Satisfaction”. It is frustration of purpose. So, again, if parties reach an agreement based on assuming certain things will or won’t happen, and an event not their fault later shatters their assumption(s), relief may be available. Was the purpose of the contract frustrated?

[For anyone wanting more detail on the three doctrines, a quick search will provide scads of information. Continuing Legal Education is going berserk with courses on all this – all webinars, to be sure.]

Digging Deeper Into What Matters

In the flood of litigation expected in the wake of COVID-19, courts will have much to consider. Whether there are Force Majeure clauses to interpret, or doctrines like impracticability or frustration to apply, judges will find themselves asking similar questions:

Was performance impossible, or so difficult that it might as well have been impossible? Or was it just annoying, inconvenient, or somewhat more difficult or costly than anticipated? How difficult is too difficult?  Did the pandemic cause the impossibility in this case? Was it even relevant?

Did the parties act honestly and in good faith? Try to perform? Seek to limit the harm or avoid the negative consequences? Seek alternative solutions? Communicate?

Is there a way out of the situation that makes sense? Can justice be done? Is one side trying to take advantage? Is the event just an excuse to renege, or an attempt to renegotiate a deal one regrets? Should the contract simply be void? What if some sort of under-performance is possible, and better than nothing?

Equity and the Truly Superior Forces

Like anything else, the Law is not perfect. Limitations and imperfections exist, whether in statutes, common law, rules, or regulations. Inflexibility is therefore problematic. Up steps Equity, the conscience of the Law. Equity does not oppose the Law, but supplements it with an overriding concern for fairness and good sense. By the way, “Equity” (or “Chancery”) sometimes denotes a division in the court system where remedies other than money damages are sought. Equity’s principles or “maxims” are generally available to interweave with the Law, however.

Of all the old Equity maxims, my favorite is this: He who seeks Equity must do Equity. Wise words, those.

Honesty, fair dealing, good faith, reasonableness, decency, concern for the big picture – these are the kinds of things courts will be looking for in deciding Force Majeure (and related) cases. They’re also what we demand of ourselves and each other when we are at our best.

These are the truly superior forces.

The wise among us don’t wait for the courts to tell us so on a case-by-case basis. What the courts decide to do always carries tremendous significance, but is not as important as what we decide to do – every day, in matters large and small.

The current saying is “We’re all in this together.” In a sense that’s always true, not only during a pandemic and not just with respect to health.  Behavior, good and bad, matters. Bad behavior harms not just the victim but the perpetrator as well, and then ripples through the community. The same is true for the benefits of the good.

Our system and our way of life depend upon our embrace of truly superior forces – among them honesty, fair dealing, good faith, reasonableness, decency, and concern for the big picture. Whether our being “all in this together” ends up a blessing or a curse depends on us.

Ken Bossong

© 2020 Kenneth J. Bossong

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The Coarse In Our Discourse

It’s Not Just Unpleasant

One of the areas where we as a people are constantly lowering the bar is in the nature and quality of our discourse. The trend is having a direct and negative impact on the quality of our lives. Whether in person or from afar, whether spoken or in writing, and whether the writing be letters, emails, texts, or tweets, how we communicate with one another is declining before our very eyes and ears.

Whether you’re driving, standing on line at a store, listening to the radio, talking to a friend, or trying to get through a family gathering, it seems to be everywhere: dopey slogans in place of insight; personal insults rather than cogent argument; arrogance teaming up with ignorance (a terrible combination); misleading or misrepresented information; and coarseness or profanity where wit and humor would better serve. Manners, honesty, respect and humility seem in short supply.

All who disagree with me are not just wrong; they’re stupid. And their stupid opinion is typical of people like them. (See “Us vs. Them” post of 2/19/19.) In fact, they’re not just stupid. They’re evil.

What matters, it seems, is not that we arrive at the best possible solution; it’s that my side “win”. Whatever it takes to win is worth it. Here’s the thing about exaggeration, spin, prevarication, selective memory, and outright lies: if we must resort to these, something is wrong with our position. The same is true for corruption, threats, intimidation, coercion and personal attacks.

The Power to Persuade

Few books read in college made as big an impression as Richard Neustadt’s 1960 classic, Presidential Power. So much so that I cite its thesis here decades later. Of all the president’s powers, Neustadt says, the most important is the power to persuade.

One example that particularly resonated was Eisenhower’s sending of federal troops to desegregate schools in Little Rock. On the surface this would seem to be the act of a powerful president. The need for troops actually was an indication of weakness, however; a truly powerful president would have needed no more than phone calls with Arkansas Governor Orval Faubus. (Sidebar: In addition to the book Presidential Power, I recommend the recording “Fables of Faubus” by Charles Mingus.)

In my experience, Neustadt’s point has considerable merit and goes well beyond presidential power. It would be naïve to ignore the impact money and the threat of force can have on decision-making. Over time, however, what matters most is the idea that persuades.

Calling someone an idiot is not persuasive; calling him or her a complete [expletive] idiot is even less so. Never once in my life when two people were arguing a point, and one of them calls the other an idiot, has the other said “You know what? You’re right. I’m wrong. I am an idiot to think that.” No, usually it sounds something like this: “Idiot!” “Moron!” “Jerk!” “Asshole!”….and so on. The two vow never to speak again; at least that’s marginally better than having fisticuffs ensue.

If the energy for name-calling is lacking, it can go more like this: Someone makes an interesting, cogent point and the other party dismisses it with “Whatever!”

The Importance of the Quality of our Rhetoric

I’m puzzled by much of what I hear debated. Take for example the battle between suspicion and embrace of the federal government, which goes back to the founding of our republic. If you think the federal government should take over and run everything, you probably have never worked for the federal government. If on the other hand you believe the federal government has no role to play in anything other than national defense and a couple other very limited and specific things, you have not been paying attention. No one is a bigger supporter of our combination of democracy and capitalism than I, but Adam Smith’s Invisible Hand makes mistakes.

Tens of thousands die in the Civil War to banish slavery’s evil blight from our nation and it takes a hundred years – A HUNDRED YEARS! – of Jim Crow before we begin to get it right. If it weren’t for federal legislation (such as the Civil Rights Act) and US Supreme Court cases (like Brown v Board of Education and Loving v. Virginia) it’s hard to imagine where we’d be.

Here’s the thing, though: Two centuries after declaring that all are created equal and one century after the 14th Amendment’s guarantee of equal protection of the law, we actually began behaving as if we meant what we had said. Our behavior began catching up with our rhetoric. It’s an outrage that it took so long, but note how important it is to get first principles – and their articulation – right. What we say about what we believe matters a great deal.

But Wait: Tearing People Apart Can Be Fun

Especially when they deserve it.

Some of the most effective satire ever written uses invective. This goes back at least to Jonathan Swift and Alexander Pope. Extraordinary skill is required, however. The biggest problem with mere name-calling and profanity is not that it’s naughty, but that it almost always lacks content. It’s something to say while we try to think of something to say. It’s easier than thinking and articulating.

When the greats of satire pile on, by contrast, they do so not only to make a point; generally, it is meticulously constructed to be the point. In his Epistle to Augustus, Pope gives his version of satire’s place amid the strife caused among friends and family by taunts that sting:

Hence, Satire rose, that just the medium hit,

And heals with Morals what it hurts with Wit.

So, when our traveling hero in Gulliver’s Travels is told by the king of the giants in Brobdingnag that he is a member of “the most contemptible race of little odious vermin that nature ever suffered to crawl on the face of the earth”, Swift is unloading on his contemporaries. We know this because the passages setting up this moment consist of Gulliver describing to the king in exquisite detail how his society works. The invective is great, but the set-up is what makes it devastating. The matter-of-fact tone with which humanity’s foibles and the king’s assessment are recounted adds tremendously to the satire’s power.  

Passages both before and after also enhance the episode’s impact. The change of scale and perspective from the first voyage encountering the tiny, and small-minded, Lilliputians to the second one visiting the giant Brobdingnagians is loaded with content well beyond the children’s adventure story the book is sometimes taken to be. Swift is not done lambasting the human race at this point of the book, either. The (less remembered) final voyage, comparing the crude, human-like Yahoos to the vastly superior horse-like Houyhnhnms, is even more scathing.

Where does this leave us when it comes to letting deserving targets have it?

  1. Those of us who are the modern Jonathan Swifts, assuming there are any: go for it.
  2. Even for the satiric greats, though, invective is just one of their techniques, and not usually the most effective. Their most telling points are generally made more subtly and artfully with wit and brilliant juxtaposition of circumstance.
  3. While using humor well can be very effective, those of us not in Swift’s class as writers would be better served skipping ad hominem attacks and focusing on the merits of the issues.

Conclusion

Communication is difficult enough when we are trying hard to do it well. We must first have an idea or feeling worth transmitting and turn that content into gesture, language and sound. Then it must be received by the other and transformed into the content intended by the sender. Much can go wrong along the way, under the best of circumstances.

The coarsening of our discourse makes for extraordinarily ineffective communication. When the discussion needed is about really important matters, this is a big deal.

To be clear, this is not about us all being “nice” (although Rodney King’s quote after viewing the horrendous carnage that followed his beating – “I just want to say…can we all get along?” – has always struck me as a hallmark of lucidity and wisdom). Above all, it is not about “giving in” or abandoning beliefs and principles.

To spell out a few suggested takeaways:

  1. If we care about our issues as much as we pretend, we should be willing to discuss them on the merits, rather than taking the lazy way out so prevalent in our current discourse.
  2. If we care about each other, we should want to discuss important matters with respect for each other and some humility regarding ourselves.
  3. Ruined Thanksgiving dinners and broken friendships are bad enough, but there is enough at stake with the issues that polarize, and the next election looming, for us to insist that we all do better.

Now, I can’t believe I’m putting this in writing and then posting it for all to read, but sometimes I’m actually wrong about something – or someone. Sometimes I learn from listening to someone with whom I disagree. More subtly, sometimes my position strengthens or gains in nuance for having recognized that the other side has a point. Sometimes my supposed adversary and I realize that our interests are not diametrically opposed in a zero-sum game (4/2/19 post).

Woe to any candidate for any office who has no sense of this, who wants to win for the sake of winning, and who has too little regard for us (or the office in question) to bother seeking our support through persuasion.

Ken Bossong

© 2019 Kenneth J. Bossong