Legal Press # 32 : Force Majeure
Viruses, wars, oil price increases, and power cuts have been filling our news feeds in the past 3 months. A potential record-breaking El Niño event may cause extreme weather across the region.
Putting that aside for a moment, we would like to introduce a term, Force Majeure. Frequent contract readers may have come across this term before, while others may be hearing it for the first time.
Coming back to the events we mentioned above, could they trigger a Force Majeure event under a contract? How does a Force Majeure clause work?
This article introduces the concept of Force Majeure and explores how it operates under Cambodian law by answering 4 practical questions below.
Question 1
What is Force Majeure? What types of events are typically covered under a Force Majeure clause? What is a Force Majeure clause?
What is Force Majeure?
The term “Force Majeure” is a French term which is literally translated as “superior force.” This term has been clearly defined in the French Civil Code as follows:
“In contractual matters, force majeure occurs when an eventbeyond the control of the debtor, which could not have been reasonably foreseen at the time of conclusion of the contract and whose effects cannot be avoided by appropriate measures, prevents the performance of the debtor’s obligation.”
While the Cambodian Civil Code does not contain a standalone Force Majeure provision applicable generally to all contracts, the Glossary attached to the Cambodian Civil Code (“Glossary”) defines a Force Majure as:
“An event occurred not from the intentionof the parties, unforeseeable and cannot be avoided or prevented.”
From the definition, 3 criteria emerge for an event to qualify as Force Majeure:
Event occurred against the will of the parties - no party caused or contributed to it;
Event was unforeseeable; and
Event was unavoidable or impossible to prevent.
All 3 criteria must be met. An event that was predictable, or one whose effects could have been managed with reasonable care, will not qualify as a Force Majeure.
Courts and arbitral tribunals also generally interpret Force Majeure clauses narrowly because they operate as exceptions to the principle that contracts must be performed. The party invoking Force Majeure usually bears the burden of proving that the clause applies.
What types of events are typically covered under a Force Majeure clause?
The following events are commonly recognised as Force Majeure:
Natural disasters: earthquakes, floods, typhoons, drought, the El Niño weather phenomenon
Pandemics and epidemics: COVID-19, SARS, Ebola, government-declared public health emergencies
Acts of war, armed conflict, invasion, or terrorism
Civil unrest: riots, insurrections, or widespread civil disturbance
Government action: embargoes, sanctions, mandatory lockdowns, expropriation
Market-wide commercial disruption: widespread consumer boycotts, sudden market closures, or severe disruption to international trade flows caused by political conflict or geopolitical events
Strikes or industrial action beyond a party's reasonable control
Significant disruptions to supply chains or critical infrastructure (e.g., power grid failures)
Sudden and severe price shocks, where the clause specifically covers them (less common)
The list can be as long or as short as the parties agree. What matters most is not the nature of the event itself, but whether the contract covers it and whether the 3 criteria above are satisfied.
What is a Force Majeure clause?
A Force Majeure clause is a provision in a contract that excuses, suspends, or delays a party’s performance when an extraordinary event beyond its control prevents performance of contractual obligations.
The quality of drafting makes an enormous practical difference. The 2 examples below illustrate this.
Example of a Comprehensive Clause
“Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means any event beyond a Party's reasonable control, which by its nature could not have been foreseen, or if it could have been foreseen, was unavoidable, including without limitation: acts of God; natural disasters (including floods, earthquakes, typhoons, or epidemics); war, armed conflict, or terrorist acts; government actions including embargo, sanctions, mandatory lockdown, or requisition; nationwide or regional strikes; failure of public utilities or transport networks; and pandemic or epidemic declared by a competent governmental or international authority.
A Party claiming Force Majeure shall: (a) notify the other Party in writing within five (5) business days of the occurrence of the event, specifying the nature of the event and its anticipated duration; (b) use all reasonable endeavours to mitigate the effects of and overcome the Force Majeure Event; and (c) resume performance as soon as reasonably practicable. If the Force Majeure Event continues for more than ninety (90) consecutive days, either Party may terminate this Agreement upon thirty (30) days' written notice, without liability to the other.”
Example of Vague and Inadequate Clause
“Neither Party shall be responsible for any delay or failure caused by circumstances beyond its control, including but not limited to acts of God or other unforeseen events.”
The vague and inadequate clause above fails to define what “circumstances beyond its control” means; it provides no notice obligation; it offers no mechanism for mitigation, duration limits, or termination rights; and the catch-all “other unforeseen events” is dangerously ambiguous and likely to generate disputes.
In contrast, the good example provides certainty, procedure, and a clear exit mechanism.
Question 2
When a Force Majeure event happens, do the parties still need to perform their duties under the contract?
Not necessarily.
A Force Majeure event excuses or suspends performance only to the extent that it actually prevents the affected party from performing its obligations. If performance remains possible, even if it has become more difficult, delayed, or expensive, the obligation will generally remain.
This distinction is important because the Cambodian Civil Code does not provide a single comprehensive Force Majeure regime applicable to all contracts. Unlike the French Civil Code, which provides a single overarching doctrine, the Cambodian Civil Code refers to Force Majeure only in specific, limited situations and legal effect differs depending on the context.
Situations where Force Majeure may excuse liability or grants relief:
Article 145 — A landowner is relieved from liability where water flow through low-lying land is obstructed due to Force Majeure, and the uphill owner may carry out remedial works at their own expense.
Article 271 — Neither owner nor usufructuary bears responsibility for reconstruction where an immovable is damaged or destroyed by Force Majeure.
Article 498 — Where a rights-holder cannot interrupt extinctive prescription within six months of its completion due to Force Majeure, the prescription period is suspended until six months after the Force Majeure ceases.
Article 606 — A lessee of land for profit may demand rent reduction, or terminate the lease after two consecutive years, where profits fall short of rent due to Force Majeure.
Article 251 — A perpetual lessee may terminate the lease if no profit can be derived for three consecutive years due to unforeseeable circumstances or Force Majeure.
Article 674 — A depositary cannot escape liability for destruction or loss of a deposited object unless Force Majeure is proven — and this standard is applied even more strictly for hotels, restaurants, and similar facilities.
Situations where Force Majeure does not excuse obligation
Article 399 — Even where Force Majeure is proven, a monetary obligor is not exempted from paying interest on delayed payment. This illustrates that Force Majeure has limits even where it is expressly invoked.
Article 826 — A pledgee who sub-pledges an object without authority remains liable for damages caused by Force Majeure.
Taken together, these provisions reveal a legislative pattern: the Cambodian Civil Code does not treat Force Majeure as a general contractual escape mechanism.
Instead, exemption or relief of the obligation depends on the particular legal situation, the wording of the contract, and whether the event genuinely prevented performance while satisfying the 3 criteria discussed in Question 1.
Question 3
What happens if your contract has no Force Majeure clause at all?
Without an express Force Majeure clause, the parties cannot rely on a single statutory provision to excuse non-performance across all contractual relationship.
The Cambodian Civil Code scatters references to Force Majeure, as outlined above, and addresses specific scenarios only.
The closest general provision is Article 415, which states:
“If performance of an obligation has become impossible without the fault of the obligor, the obligation shall be extinguished, and the obligee may not demand performance thereof.”
This provision reflects the broader doctrine of impossibility rather than a standalone statutory Force Majeure regime.
This Article 415 may provide relief where performance has become genuinely impossible and without fault. However, it offers no procedural framework: there is no notice requirement, no mitigation obligation, no agreed consequence, and no termination mechanism.
A court applying Article 415 would therefore have wide discretion, and outcomes will be unpredictable.
This creates risk for both parties. If impossibility is accepted too easily, a party may avoid liability even though reasonable alternatives were available. On the other hand, if the standard is applied too strictly, a party genuinely affected by the event may still remain liable.
This is why a carefully drafted Force Majeure clause matters. It defines the events, sets the procedure, requires mitigation, and provides a clear exit, giving both parties certainty that the statute simply cannot provide.
Question 4
Let's take a scenario that is still fresh in our minds - the COVID-19 pandemic. Party B is contracted to build a villa for Party A. There was no government-declared lockdown in the city where the villa is being constructed. However, Party B is unable to carry out the construction works due to delays in importing construction materials from overseas. Party B wishes to rely on the Force Majeure clause to avoid paying delay damages. Can he do so?
Based on the Comprehensive Clause above:
COVID-19 (declared a pandemic by the WHO on 11 March 2020) is expressly covered.
The key issue is causation. Party B must demonstrate that:
the supply chain disruption, not a local lockdown, directly prevented performance;
the required materials could not be sourced from any alternative supplier;
the overseas supply was physically cut off by pandemic-related closures; and
Party B have issued written notice within 5 business days and taken genuine mitigation steps.
If these conditions are met, the claim is arguable, though the absence of a local lockdown would likely increase the evidentiary burden..
Based on the Vague and Inadequate Clause above:
The position becomes less certain.
Whether a pandemic qualifies as an “unforeseen event” under such vague clause may become disputable, particularly if pandemic risk was already known at the time the contract was signed. The clause contain:
no notice obligation (creating waiver risk);
no mitigation obligation;
no termination mechanism.
As a result, a court may instead analyze the dispute through the doctrine of impossibility under Article 415 of the Civil Code, applying a strict impossibility standard with broad judicial discretion.
Both parties therefore face uncertainty, evidentiary disputes, and potentially costly litigation.
Key Takeaways
Force Majeure is not a free pass. It does not excuse a party simply because something bad happened in the world. The event must directly prevent performance, and the party must prove it could not have been foreseen or avoided.
Cambodian law does not provide a single comprehensive Force Majeure regime applicable to all contracts. There is no blanket statutory right to exit contracts due to Force Majeure. The concept appears only in specific situations, and even then, it does not always excuse the affected party.
Article 415 is a narrow safety net, not a substitute. If your contract has no Force Majeure clause, you may rely on Article 415 (impossibility without fault), but the threshold is high, the process is uncertain, and outcomes are unpredictable.
The clause you sign matters enormously. A comprehensive clause defines what events are covered, requires prompt notice, obliges the affected party to mitigate, and provides a clear exit after a set period. A vague clause does none of these things and is almost guaranteed to generate a dispute.
Increased cost, delay, or commercial hardship alone will not usually amount to Force Majeure unless the contract expressly says so or performance has become genuinely impossible.
Examples of clauses above are just examples of the structure of the respective clause and shall not be deemed as a legal advice nor confirmation of the applicability of such clause to every contract or its enforceability.
This is for general reference only and does not constitute legal advice. For further guidance and legal advice on the non-competition clause in your contracts, contact us at:📧 connect@vlplaw.co