Will this force-majeure clause excuse our performance in Nebraska?
No authority located answers that, and the finding is the answer: there is no Nebraska force-majeure statute for a private contract and no Nebraska appellate decision construing a force-majeure CLAUSE. What Nebraska does have is the doctrine behind the clause, and it is strict. Armstrong v. Clarkson College states it: “The doctrine of impossibility of performance, often now called impracticability of performance, excuses a promi- sor's failure to perform a duty under a contract where perform ance has been rendered severely impracticable or impossible by unforeseen circumstances”, on Restatement (Second) of Contracts § 261, “Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the lan- guage or the circumstances indicate the contrary.” The three requirements are set out in the same opinion: “(1) the occurrence (or nonoccurrence) of the event causing the impracticability was unexpected; (2) performance of the duty by the promisor would be extremely difficult and burdensome, if not impossi- ble; and (3) the promisor did not assume the risk of the event's occurrence (or nonoccurrence).” Two further limits decide cases. Hardship is not enough: “Performance of a contractual duty is not impracticable merely because it has become inconvenient or more expen- sive.35 Mere difficulty of performance is not enough.” And the party invoking it carries an affirmative burden: “the party invoking the impracticability defense must show that he or she used reasonable efforts to surmount the obstacles which prevented performance.” Cleasby v. Leo A. Daly Co. gives the doctrine's other names in Nebraska: “Business necessity is sometimes called impossibility of performance, extreme impracticability, frustration of contract, or implied condition in the promise.”
The trap
Foreseeability is the Nebraska tripwire, and it is applied at a high level of generality. Armstrong refused an impossibility instruction because “it was not unexpected that a student might be placed on probation or that a clinical site might dismiss or refuse to accept a student”, even though “the specific details of Armstrong's behavior might have been unexpected”. If the CATEGORY of event was foreseeable, the specific instance being a surprise does not help. Second trap: you have to have tried. “Clarkson's instruction was not warranted, because the difficulty was not unexpected and Clarkson failed to take reasonable steps to overcome the difficulty”, so a party that invokes the clause without documenting what it did to perform anyway is arguing a defence it has not made out. Third, and this is where this rule is honest with you: because NO Nebraska opinion construes a force-majeure clause, nothing here tells you how a Nebraska court will read the words you drafted, whether a catch-all sweeps in an unlisted event, whether notice is a condition, who bears the burden under the clause as opposed to the doctrine, or whether the clause displaces the common law at all. One decision has touched such a clause without construing one: Blue Creek Farm v. Aurora Cooperative Elevator Co. defined the device: “In general, a force majeure provision is a contractual provision that allocates the risk if performance becomes impossible or impracticable as a result of an event or effect that the parties could not have anticipated or controlled.”, and then decided only whether invoking it was a repudiation, holding it was not clearly erroneous to find that a buyer who gave notice of a 30-day delay had not repudiated. Nothing in it reads a trigger, a catch-all or a notice condition. Fourth, a statutory false friend: the ONLY Nebraska section containing the phrase “force majeure” is Neb. Rev. Stat. § 8-3104 in the LIBOR Transition Act, and it points the other way. A benchmark discontinuance shall not “[h]ave the effect of (i) discharging or excusing performance under any contract, security, or instrument for any reason, claim, or defense, including, but not limited to, any force majeure or other provision in any contract, security, or instrument”. Citing it as Nebraska's force-majeure statute would be a serious error. Fifth, one doctrine you may expect and will not find stated by a court you can cite: “frustration of purpose” is named in exactly one Nebraska opinion we hold, a 2024 Court of Appeals memorandum web opinion that is not designated for permanent publication and may not be cited except as its own notice provides, and no Nebraska Supreme Court opinion uses the phrase at all.
12 authorities
The words that state the rule
The doctrine of impossibility of performance, often now called impracticability of performance, excuses a promi- sor’s failure to perform a duty under a contract where perform ance has been rendered severely impracticable or impossible by unforeseen circumstances
The words that state the rule
Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the lan- guage or the circumstances indicate the contrary.
The words that state the rule
There are three general requirements for the application of the doctrine of impracticability of performance: (1) the occurrence (or nonoccurrence) of the event causing the impracticability was unexpected; (2) performance of the duty by the promisor would be extremely difficult and burdensome, if not impossi- ble; and (3) the promisor did not assume the risk of the event’s occurrence (or nonoccurrence).
The words that state the rule
Performance of a contractual duty is not impracticable merely because it has become inconvenient or more expen- sive.35 Mere difficulty of performance is not enough.
The words that state the rule
And the party invoking the impracticability defense must show that he or she used reasonable efforts to surmount the obstacles which prevented performance.
The words that state the rule
Clarkson’s instruction was not warranted, because the difficulty was not unexpected and Clarkson failed to take reasonable steps to overcome the difficulty.
The words that state the rule
Here, it was not unexpected that a student might be placed on probation or that a clinical site might dismiss or refuse to accept a student. While the specific details of Armstrong’s behavior might have been unexpected, it certainly was not unforeseen to Clarkson that a student might act in an unprofessional manner.
The words that state the rule
Business necessity is sometimes called impossibility of performance, extreme impracticability, frustration of contract, or implied condition in the promise.
- statuteNeb. Rev. Stat. § 8-3104enactment date not established
The words that state the rule
Any LIBOR discontinuance event or LIBOR replacement date, selection or use of a recommended benchmark replacement as a benchmark replacement, or determination, implementation, or performance of benchmark replacement conforming changes that occurs by operation of section 8-3103 shall not: (a) Be deemed to impair or affect the right of any person to receive a payment, or affect the amount or timing of such payment, under any contract, security, or instrument; or (b) Have the effect of (i) discharging or excusing performance under any contract, security, or instrument for any reason, claim, or defense, including, but not limited to, any force majeure or other provision in any contract, security, or instrument, (ii) giving any person the right to unilaterally terminate or suspend performance under any contract, security, or instrument, (iii) constituting a breach of a contract, security, or instrument, or (iv) voiding or nullifying any contract, security, or instrument.
The words that state the rule
The Restatement (Second) on Contracts, § 261, entitled “Discharge by Supervening Impracticability,” states:
- case614 N.W.2d 310Blue Creek Farm, Inc. v. Aurora Cooperative Elevator Co.Neb.decided 2000read it at the source ↗
The words that state the rule
In general, a force majeure provision is a contractual provision that allocates the risk if performance becomes impossible or impracticable as a result of an event or effect that the parties could not have anticipated or controlled.
- case614 N.W.2d 310Blue Creek Farm, Inc. v. Aurora Cooperative Elevator Co.Neb.decided 2000read it at the source ↗
The words that state the rule
We conclude that the district court was not clearly erroneous in finding that Aurora did not repudiate the contracts by sending the letter informing Blue Creek that it intended to delay performance by 30 days.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.