Originally from Force Majeure and Hardship in the Asia-Pacific Region

Questions

I.     Force majeure

A.    Background and definition of force majeure in Singapore

1.    Does Singapore recognize force majeure or any other legal concept similar to force majeure such as frustration, etc. (in the following: “force majeure”)? Are there any statutory provisions or is there any case law setting forth the definition of force majeure?

In Singapore, unlike in civil law jurisdictions, force majeure does not exist as a separate legal doctrine, and there are no statutory provisions defining force majeure. Rather, the term ‘force majeure’ usually refers to a specific contractual provision which discharges or suspends a party’s performance of the contract on the occurrence of specified categories of events. In a passage which has been subsequently quoted by the Singapore Court of Appeal (Singapore’s apex court)

it has been observed that:

What is referred to as force majeure in our law (as opposed to French law from which that term originates) is really no more than a convenient way of referring to contractual terms that the parties have agreed upon to deal with situations that might arise, over which the parties have little or no control, that might impede or obstruct the performance of the contract. There can therefore be no general rule as to what constitutes a situation of force majeure. Whether such a (force majeure) situation arises, and, where it does arise, the rights and obligations that follow, would all depend on what the parties, in their contract, have provided for.

(emphasis original)

The effect of such clauses is to contractually allocate the risks between the contracting parties with regard to the occurrence of future events in specific circumstances, all of which are stipulated within the clause.

A comprehensive discussion on the application of force majeure in Singapore was expounded in the Singapore Court of Appeal decision of RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd  (“RDC Concrete”), at [53] to [54]:

The principal purpose of a force majeure clause is to contractually allocate the risks between the contracting parties with regard to the occurrence of future events in specific circumstances, all of which are stipulated within the clause itself.

The most important principle with respect to force majeure clauses entails, simultaneously, a rather specific factual inquiry: the precise construction of the clause as it would define the precise scope and ambit of the clause itself. The court is, in accordance with the principle of freedom of contract, to give full effect to the intention of the parties in so far as such a clause is concerned.

(emphasis in original)