Does this force-majeure clause help or hurt, given California's statutory excuse?
California supplies an excuse by statute whether or not the contract has a clause: performance is excused "to the extent to which they operate" when it is prevented or delayed by the act of the creditor or by the OPERATION OF LAW (even though there may have been a stipulation that this shall not be an excuse), and when it is prevented or delayed by an irresistible, superhuman cause or by the act of public enemies, UNLESS THE PARTIES HAVE EXPRESSLY AGREED TO THE CONTRARY, and when the debtor is induced not to perform by any act of the creditor intended or naturally tending to have that effect, done at or before the time performance may be made and not rescinded before that time (Civ. Code § 1511(1)-(3)). The same section permits a contract to require the party relying on the creditor-act/operation-of-law excuse to give written notice of its intention to claim an extension within a reasonable time, provided the notice requirement is reasonable and just.
The trap
The clause can subtract. Section 1511(2)'s excuse for an irresistible, superhuman cause is a default the parties may contract out of; whether an exhaustive 'force majeure means only the following events' list is that express contrary agreement is not answered by the statute or by any authority in this rule. The mirror-image trap is subdivision (1): a stipulation that prevention by operation of law is NOT an excuse is ineffective, but a reasonable written-notice condition IS effective, so the excuse can be lost for want of the notice the clause required. That is not merely the proviso's own words. Peter Kiewit Sons' Co. v. Pasadena City Junior College Dist. (1963) held that a provision requiring the contractor to apply for an extension of time before being excused for an owner-caused delay would constitute "a substantial limitation on the policy declared by section 1511"; Greg Opinski Construction, Inc. v. City of Oakdale (Cal. Ct. App. 2011) holds that this aspect of Peter Kiewit was superseded by a 1965 amendment to § 1511, that contractual procedures for requesting an extension of time can be the specification the amendment contemplates, and that a contractor who does not follow them cannot rely on Peter Kiewit at all. So the notice proviso is not a formality: it is the route by which a drafted clause takes back the subdivision (1) excuse the same subdivision says cannot be stipulated away.
3 authorities
- statuteCal. Civ. Code § 1511enactment date not established
The words that state the rule
The want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate: 1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipulation that this shall not be an excuse; however, the parties may expressly require in a contract that the party relying on the provisions of this paragraph give written notice to the other party or parties, within a reasonable time after the occurrence of the event excusing performance, of an intention to claim an extension of time or of an intention to bring suit or of any other similar or related intent, provided the requirement of such notice is reasonable and just; 2. When it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary; or, 3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time.
- case59 Cal. 2d 241Peter Kiewit Sons' Co. v. Pasadena City Junior College DistrictCal.decided 1963read it at the source ↗
The words that state the rule
An owner who is a party to a construction contract is a creditor within the meaning of section 1511 (Semas v. Bergmann, 178 Cal.App.2d 758, 762 [ 3 Cal.Rptr. 277 ]), and, as the italicized portion of the section makes clear, a provision in an agreement that the contractor is not to be excused for late completion caused by the owner is rendered inoperative by the statute. A provision in a contract which would require the contractor to make an application for an extension of time before he may be excused for a delay caused by the owner's conduct would obviously constitute a substantial limitation on the policy declared by section 1511.
- caseNo. F060219 (Cal. Ct. App. Oct. 6, 2011)Greg Opinski Construction, Inc. v. City of OakdaleCal. Ct. App.decided 2011
The words that state the rule
In the published part of our opinion, we hold that this aspect of Peter Kiewit was superseded by a 1965 amendment to Civil Code section 1511, which allows parties to specify in a contract that a party intending to avoid the effect of its failure to perform by asserting that the other party’s act caused the failure must give written notice of this intention within a reasonable time. In this case, the contractual provisions requiring certain procedures to be followed by a party requesting an extension of time *1110 amounted to the type of specification contemplated by the amendment to Civil Code section 1511. Since Opinski did not follow those procedures to claim an extension of time, it cannot rely on Peter Kiewit, and the trial court was correct to enforce the procedural requirements of the contract.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.