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• Is a force majeure clause mandatory in construction contracts?Main points and insights:
• A force majeure clause is not universally mandatory but is highly recommended to specify the scope of unforeseen events that can excuse performance. Its inclusion provides clarity on what constitutes a force majeure event and the consequences thereof. Several sources emphasize that the clause must be expressly drafted, interpreted narrowly, and invoked properly. For instance, courts often presume that force majeure refers to supervening events outside the fault of either party, and parties must clearly establish their case within the clause’s scope ["

  NG THAI LWN. WONG FAH DEVELOPMENT SDN BHD - High Court

  "].
• In contracts without a force majeure clause, parties may rely on the doctrine of frustration under applicable law (e.g., Section 56 of the Indian Contract Act), but this is less predictable and more limited ["2024 6 Supreme 354"].
• Many contracts include explicit force majeure clauses that define specific events (e.g., governmental restrictions, natural disasters, pandemics like COVID-19) and outline procedures such as notification requirements ["2023 0 Supreme(Gau) 846"], ["

  SMART AVENUE PROPERTY SDN BHD vs BBCC DEVELOPMENT SDN BHD - High Court

  "].

• The absence of such a clause does not prevent parties from claiming relief based on legal doctrines, but having a force majeure clause provides clearer contractual protection and guidance ["2024 0 Supreme(Del) 560"].

• Analysis and Conclusion: A force majeure clause is not strictly mandatory in construction contracts, but its explicit inclusion is highly beneficial. It reduces ambiguity, delineates the scope of relief, and guides parties on procedural steps (such as notification). Courts tend to interpret such clauses narrowly and require the affected party to prove the event falls within the clause's terms. In the absence of a force majeure clause, parties may resort to the doctrine of frustration, which offers a less predictable remedy. Therefore, drafting a clear and comprehensive force majeure clause is strongly advisable for effective risk management in construction agreements ["2024 6 Supreme 354"].