Supervening Impossibility and the interpretation of force majeure clauses during a pandemic

Abstract

This dissertation aims to assess and deal with the common law doctrine of supervening impossibility and the use of force majeure clauses in contracts, specifically during a pandemic such as the COVID-19 pandemic. Since the South African contract law does not consider force majeure, per se, it is necessary to fall back on the common law which regulates performance of a contract. When parties enter into a contract which does not make provisions for unforeseeable events or circumstances, they are bound by the common law doctrine of supervening impossibility. The reason for this is that the contracting parties have some protection or recourse in times of crises. It is, however, important to keep in mind the intention of the parties and thus consider a more flexible clause such as a force majeure clause which is specific to the parties’ contract and makes provisions that suit the parties needs and can avoid the termination of the contract in the event of an unforeseeable event beyond the parties’ control. This dissertation thus investigates performance of contracts in South Africa and the effectiveness of the South African common law.