Force Majeure and NEC

NEC has no force majeure clause: the phrase doesn't appear in the contract. Instead, the NEC4 ECC uses the prevention event at 60.1(19), plus the Client's liabilities, weather, and termination reason R21, to deal with events that nobody could stop or reasonably foresee.

The result is often better for the Contractor than a typical force majeure clause, as it gives time and money and not time alone. This page compares the two approaches, as part of the wider guide to NEC risk and liabilities.

How NEC differs from a typical clause

Point	A typical force majeure clause	NEC prevention at 60.1(19)
Trigger	Often a list of named events	A test, with no list
Remedy	Often extra time and relief from liability, without money	A compensation event: Prices and Completion Date can both change
Who carries the cost	Usually each side bears its own	The Client, through the compensation event
Right to end the contract	Often after a long stoppage, for either Party	R21: the Client only, when the stated tests are met

The left-hand column describes common drafting in general. Clauses vary, so read any actual clause carefully, particularly if a Z clause has added one to your NEC contract.

The test for 60.1(19)

All of these have to be met for the prevention event to apply:

1. The event stops the Contractor completing the works, or completing them by the date for planned Completion on the Accepted Programme.
2. Neither Party could prevent it.
3. An experienced contractor at the Contract Date would have judged the chance so small that it would have been unreasonable to allow for it.
4. It isn't one of the other compensation events.

Note the word "stops". Mere disruption and extra cost don't usually count. The guide to the prevention event covers typical examples and failures. Clause 19.1 allows the Project Manager to give an instruction about how to deal with such an event.

Where other extreme events go

Event	Where to look first	Reference
Exceptional weather	The weather compensation event, with data for the place in the Contract Data	60.1(13)
Flood or storm damaging the works	Usually the Contractor's liability and insured. Check for a weather event and the Contract Data	60.1(13), 81.1
War, riot, radioactive contamination damaging the works	Client's liabilities	60.1(14), 80.1
Strikes confined to the Contractor's workforce	The Contractor's risk	80.1 excludes them
New legislation	Option X2, if selected	X2.1
Events listed by the Client	Extra compensation events in the Contract Data	60.1(21) in NEC4 only
The contract becoming legally impossible to perform	Termination by either Party	R17, 91.5

A single event may touch more than one row. Before you claim prevention, check the others, since 60.1(19) only applies where nothing else fits.

A worked example

A fictional coastal defence scheme. Authorities close the only access road for 10 weeks after an unprecedented landslip on land nobody involved in the job controls. No other route exists. Illustrative only.

• Does it stop completion by the planned date? Yes, on the Contractor's programme.
• Could either Party prevent it? No.
• Chance: the geological reports showed no sign of it, and nothing suggested that an experienced contractor would have allowed for it.
• Other events? Not a physical condition within the Site, as it happened off Site. So 60.1(12) doesn't apply. Not weather as such.

The Contractor would notify a compensation event under 60.1(19) within the time limit in clause 61.3. It would give an early warning, and it should try to reduce the effect, since the assessment assumes it reacts competently. If the forecast delay had been much longer, the Client could look at R21. See reasons for termination.

Tips for tenderers and Clients

• Check whether a Z clause has removed or qualified 60.1(19). Some Clients do so to reduce their exposure.
• If a well-known hazard exists at tender, an experienced contractor may be expected to allow for it. The test is applied at the Contract Date, so what was known then matters.
• Pandemics and similar events can't be answered in general terms: test the facts of each case against each element, and take advice where the sums are large.

Related guides

• NEC Risk, Liabilities and Insurance
• Risk Allowances in Quotations
• Limiting Liability Under NEC

This guide is general information in our own words, not legal advice. Your contract and its Contract Data always govern. NEC, NEC3 and NEC4 are trade marks of Thomas Telford Ltd; Contract Status is not affiliated with or endorsed by NEC.