Paul Schwartfeger

(Un)reasonable endeavours: force majeure clauses and offers of non-contractual performance

Can a party be required to accept an offer of non-contractual performance so as to overcome what would otherwise be a force majeure event? In its recent decision in MUR Shipping BV v RTI Limited, the Supreme Court held that the answer to this question was “no”, finding that the Appellant was not obliged to accept an offer by the Respondent to pay in euros where the contract provided for payment in USD. While the court’s decision may provide parties with greater certainty when it comes to force majeure clauses, this certainty arguably comes at the expense of a “business common sense” approach, and leaves open the possibility that a contract may be suspended or terminated even where a force majeure event could have been overcome by acting reasonably.