Will this force-majeure / impossibility clause excuse late or non-performance, and can the other side draft around it?
Yes, within limits the statute itself sets, and only ONE of the statutory excuse grounds can be contracted around. Montana codifies contract-excuse doctrine directly in Title 28. The first ground is unwaivable: performance is excused “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” (§ 28-1-1301(1), MCA). Bottrell v. American Bank confirms it operates exactly as written: “performance is excused by one party when it is prevented or delayed by the act of the creditor,” and Smith v. Farmers Union Mutual Insurance applies the same principle to a party that never presented an instrument for payment and then blamed the other side for nonpayment: “the fault for nonperformance (i.e., nonpayment) would lie with FUMIC alone.” The second ground is different in kind: performance is excused “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” (§ 28-1-1301(2), MCA): the classic Act-of-God ground, and the one subsection the parties may narrow or waive by an express contrary agreement. There is a THIRD cause the statute lists and this answer does not turn on: performance is also excused “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tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time” (§ 28-1-1301(3), MCA). Subsection (3) carries no contrary-agreement escape either, so a clause aimed at the Act-of-God ground leaves two of the three causes untouched.
The trap
The two grounds are not interchangeable, and a clause that is silent on which one it is aimed at is a real risk. A no-excuse or liquidated-timeline clause drafted broadly enough to reach subsection (2) can validly cut off the Act-of-God excuse: that is what “expressly agreed to the contrary” contemplates. It CANNOT touch subsection (1): no drafting reaches a delay caused by the other party's OWN act or by a change in the law, because the statute excuses that “even though there may have been a stipulation that this shall not be an excuse.” Whether a force-majeure clause's exhaustive list of qualifying events is itself the statute's “express[]…contrary” agreement is not answered by any Montana authority located. The phrase “force majeure” occurs in exactly four published Montana opinions, in no other capitalisation, and none of the four construes subsection (2)'s contrary-agreement proviso, so there is no Montana decision to read on the question.
6 authorities
- statuteMont. Code Ann. § 28-1-1301enactment date not established
The words that state the rule
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;
- statuteMont. Code Ann. § 28-1-1301enactment date not established
The words that state the rule
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
The words that state the rule
Under S 28-1-1301 (1), MCA, performance is excused by one party when it is prevented or delayed by the act of the creditor.
- statuteMont. Code Ann. § 28-1-1301enactment 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:
- statuteMont. Code Ann. § 28-1-1301enactment date not established
The words that state the rule
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.
The words that state the rule
Because FUMIC did not even attempt to present the order for payment, the fault for nonperformance (i.e., nonpayment) would lie with FUMIC alone. In that instance, FUMIC could not fault the Smiths for nonpayment
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.