by Guto Mogere, Ronald Makokha, Dennis Nkarichia & Christopher Munene
I. Introduction
The COVID-19 pandemic erupted as an unprecedented global crisis that fundamentally disrupted commercial and contractual relationships worldwide. As businesses faced government-mandated lockdowns, supply chain collapses, and dramatic shifts in market conditions, parties found themselves unable to perform contractual obligations through no fault of their own. This forced court globally to confront a challenging question: How should legal systems classify the pandemic’s effect on contractual obligations? We argue that courts in common law jurisdictions should recognize an implied force majeure doctrine to provide equitable relief during global crises like COVID-19
At the heart of this question lies the tension between two distinct legal doctrines, force majeure and frustration. While seemingly similar in effect, they emerge from fundamentally different legal traditions. Force majeure, a concept rooted in civil law systems and originating from the French Civil Code of 1804 (the Napoleonic Code), represents a contractual mechanism where parties explicitly allocate risk for specified extraordinary events. The Latin phrase “force majeure” literally translates to “superior force,” acknowledging that certain events transcend human control or foresight. Under French law, where the doctrine originated, it operates as a statutory principle that applies by default to all contracts, a fundamentally different approach than common law systems where force majeure operates only as an express contractual provision.
In contrast, frustration developed as a common law doctrine to address supervening impossibility where no contractual provision existed. Emerging from the seminal English case of Taylor v. Caldwell (1863), frustration provides a more limited escape valve, applying only where performance becomes genuinely impossible or radically different from what was originally contemplated. Unlike force majeure which can be tailored to the parties’ needs, frustration operates as a blunt instrument that completely discharges contractual obligations.
This distinction creates a challenging legal landscape for pandemic-affected contracts. In common law jurisdictions like Kenya and South Africa, parties without express force majeure clauses must rely on the more demanding doctrine of frustration, often finding themselves bound to perform despite extraordinary circumstances. The Supreme Court’s decision in Kwanza Estates Limited v JKUAT exemplifies this rigid approach, refusing to recognize COVID-19 as a frustrating event capable of discharging contractual obligations in a commercial lease.
We posit that exceptional circumstances like COVID-19, truly global, unforeseeable, and government-mandated disruptions justify recognition of implied force majeure principles even in the absence of explicit contractual provisions. While this position challenges traditional common law boundaries between contractual and common law remedies, it offers a more just, commercially realistic approach to unprecedented events that neither party could reasonably have anticipated or allocated risk for when contracting.
A. Distinction between Force Majeure and Frustration
In contract law, two doctrines are generally invoked to excuse contracting parties for non-performance in the face of unforeseen circumstances that disrupt contract performance: force majeure and frustration. While both excuse parties for non-performance under contract, they are grounded in different traditions of law and operate on different bases. An understanding of the contractual nature of force majeure and common law doctrine of frustration is necessary to appreciate how these principles operate, particularly in light of unprecedented global crises such as the recent COVID-19 pandemic.
1. Contractual Nature of Force Majeure vs. the Common Law Doctrine of Frustration
At the center of force majeure is a contractual clause that explicitly sets out what would excuse a party for non-performance. Force majeure is derived from civil law systems and provides a means of relief in the event that certain enumerated unforeseen events—such as natural disasters, pandemics, or governmental action—render it impossible or impracticable to perform.[1] Foreseeability and mutuality are the essence of force majeure: contracting parties consciously recognized such events as exceptions and made it clear in the contract that in those circumstances they are not to be held accountable for non-performance.[2]
On the other hand, frustration is a common law doctrine that arises in the absence of a force majeure clause. It is triggered by a contract’s impossibility or fundamental change in contract by reason of unforeseen circumstances.[3] Unlike force majeure, frustration is not preceded by a contractual clause, but is created by nature of the event. It is essentially a legal safety valve that is triggered by an event that makes it “objectively impossible” to fulfill the contract and makes the original obligation void.[4]
While force majeure is flexible and can be drafted to suit specific contract terms, frustration is more stringent and has a strict test for invoking it. It is a mechanism of last resort—one that recognizes a fundamental change in the intended purpose of the contract where circumstances are such that it would be unjust to go on with the original terms.
2. Standard Requirements for Frustration
To invoke the doctrine of frustration, certain key criteria must be met, and courts take a strict approach in applying this principle as it was held by the court of appeal in the Charles Mwirigi case[5] (Supra). The event must not only disrupt the contract but must render its performance objectively impossible or so radically different from the original terms that it would be unjust to enforce it.[6] The three core elements of frustration include:
- Objective Impossibility: The event must make performance impossible. This is not just about a temporary disruption or increased difficulty—the contract must be fundamentally altered, such as when it is physically impossible to perform the contract’s terms (e.g., destruction of the subject matter of the contract).
- No Fault: The event causing the frustration must not be the fault of the party invoking it. It is an important safeguard to prevent one party from using frustration as an excuse when they are responsible for the difficulty or impossibility of performance.
- Fundamentally Different Obligation: The event must result in a situation where the contract’s performance becomes radically different from what was originally agreed upon. It is not enough for the event to cause a minor inconvenience or financial loss—the change must be so significant that performance as initially agreed is no longer viable or justifiable.
The frustration doctrine serves to address truly extreme cases where the contract’s performance is no longer feasible due to extraordinary events, but its strict application has made it difficult to use in many cases.
3. The Higher Threshold of Frustration Compared to Force Majeure
One of the most significant differences between frustration and force majeure is the threshold for invocation. As Peari and Golestani note, frustration sets a higher bar for relief, demanding that the event not only disrupt performance but make it impossible or so radically altered that continuing would be unjust.[7] This is a stringent requirement that limits the circumstances under which frustration can be invoked successfully. On the other hand, force majeure is more flexible. As Phelps argues, even when performance is not impossible but is rather significantly more difficult or financially burdensome to execute, force majeure can still be used as long as the event is deemed to be an extraordinary and unexpected occurrence outside of the party’s control.[8] For example, while the pandemic made performance challenging and even impractical for many businesses, the rigid requirements of frustration would likely fail to recognize such circumstances as a valid excuse for non-performance unless the performance was entirely impossible.
Therefore, force majeure is more flexible allowing parties to adjust terms of contracts or suspend performance without requiring drastic change in the nature of the contract. In contrast, frustration is limited to situations where it is impossible to perform and the overall objective of the contract has been completely changed.
III. Comparative Jurisprudence: Force Majeure vs. Frustration
A. Kenyan Case Study: Kwanza Estates Ltd case [9]
In this case, Jomo Kenyatta University of Agriculture and Technology (JKUAT) argued that the COVID-19 pandemic frustrated its lease agreement with Kwanza Estates Ltd due to government-imposed lockdowns, financial strain, and the impact on the educational sector. JKUAT claimed that the pandemic made it impossible to continue fulfilling its obligations.
The Supreme Court rejected the argument that COVID-19 could be considered a frustrating event. The Court emphasized that economic hardship alone does not meet the strict criteria for frustration, which requires objective impossibility or a radical change in the contract’s nature. The Court referenced the Davis Contractors Ltd v. Fareham U.D.C (1956) and Taylor v. Caldwell (1863) cases, reinforcing that frustration applies when the performance of the contract becomes impossible, not just difficult. On force majeure, the Court noted that no force majeure clause existed in the lease agreement. The Court rejected force majeure as a defense, explaining that force majeure requires explicit inclusion in the contract. Since it wasn’t part of the agreement, the Court ruled that it couldn’t be invoked.
B. South African Case Study: SB Guarantee Co (RF) Property Ltd case[10]
In SB Guarantee Co (RF) Property Ltd v. Mogale, the South African court addressed whether the COVID-19 pandemic could justify the suspension of obligations under a home loan agreement. The respondents, Mogale, argued that economic hardship caused by the pandemic made performance impossible, and sought to invoke force majeure. However, the contract did not contain an explicit force majeure clause, so the court examined whether the common law doctrine of impossibility of performance could provide relief.
The court rejected the claim, stating that although the pandemic caused financial hardship, it did not make performance objectively impossible. Under common law, frustration or impossibility applies only when performance becomes completely unfeasible, not merely more difficult or burdensome. The court emphasized that impossibility of performance requires a fundamental alteration of the contract’s purpose, not just an increase in difficulty.
The two decisions highlight the rigid application of impossibility and the narrow scope of force majeure in South African and Kenyan law. It reveals a critical gap in legal remedies when contracts do not specifically address extraordinary disruptions. This case exemplifies why implied force majeure principles should be recognized in common law jurisdictions. Rather than relying on a stringent standard of impossibility, implied force majeure could provide a more flexible and fair solution when unforeseen events impact performance, especially when there is no express force majeure clause in the contract.
C. French Case Study: French Court Ruling on COVID-19 as Force Majeure (2020)[11]
In the case of EDF-TDE, Total Direct Energie (TDE) invoked the force majeure clause to suspend contractual obligations to Électricité de France (EDF) due to the outbreak of COVID-19 despite it not being stated in the contract. Paris Commercial Court ruled in favour of TDE, which had interpreted the pandemic outbreak as a force majeure event. The court invoked France’s liberal definition of force majeure that covers unforeseen events including pandemics even if the incident had not been specifically written into the contract. It is a testament to the flexibility of civil law systems where force majeure can be interpreted as covering unforeseen global events including pandemics as long as the incident is external, unforeseen, and irresistible.
In contrast, common law jurisdictions like those in South Africa and Kenya tend to require a specific force majeure clause to invoke relief. Force majeure is applied more narrowly in these jurisdictions and only to those events enumerated in the contract. The French TDE case shows that implied force majeure principles could offer more flexibility in common law courts, allowing courts to look to unforeseen circumstances like COVID-19 as force majeure events even in the absence of an explicit clause. This would offer a more adaptable remedy in case of extraordinary disruptions to contractual performance.
IV. The Case for Implied Force Majeure Principles
A. Recognizing Exceptional Global Events Like COVID-19
The COVID-19 pandemic is definitely among the most unprecedented global incidents in recent times. From government-imposed lockdowns to supply chain interruptions around the world, the outbreak redefined how business is done by forcing some to shut down for a time or reorganize entirely. COVID-19 fits the criteria for force majeure because it was unforeseen, outside control by contracting parties, and made it impossible to perform contracts.
Even without an explicit contractual force majeure clause, the impact of the pandemic on performance cannot be ignored. Just like civil law systems—like those in France—allow for force majeure to be implied in cases of unexpected global disruptions[12], common law systems ought to take into account that such events ought to be excused even in the absence of a force majeure clause providing for the same. Impossibility of performance resulting from government directives or breakdown in markets should qualify as an implied force majeure event. For example, when lockdowns prevent businesses from fulfilling contractual commitments, it is not just an inconvenience—it is a fundamental disruption to the contract’s purpose. Recognizing implied force majeure would be a more just and flexible remedy for such unprecedented situations to avoid penalizing businesses for something entirely outside of their control.
B. Judicial Flexibility and Implied Force Majeure
Courts must evolve the manner in which they approach unforeseen global crises. The common law principle of frustration mandates strict impossibility of performance, but the strict test does not always serve well where performance has become impracticable by extreme events like the COVID-19 pandemic. The pandemic demonstrated the potential for global crises to severely impair the ability for contractual performance without rendering them impossible. In these circumstances, the doctrine of frustration does not work well because it does not cater for where the performance of the contract continues to remain possible although unreasonably difficult or commercially impracticable.[13]
This is where the doctrine of implied force majeure comes in, offering a much-needed shift in how courts address extraordinary disruptions. In this case, the courts have the opportunity to turn away from the narrow and rigid doctrine of frustration and adopt one which is adaptive and flexible – one that acknowledges the reality of modern global crises. By invoking the doctrine of force majeure, the courts have the opportunity to provide relief where the performance in the contract is significantly impacted by unforeseen global events without the requirement that the performance must become impossible. The doctrine leads to fairer results in the case of interruptions that were unforeseen at the time the contract initially came into being.
C. Balancing Commercial Reality and Legal Certainty
Implied force majeure provides an essential equilibrium between contractual certainty and the call for fair relief at times of extraordinary events. Commercial relationships operate on the basis of contracts which provide predictability and security.[14] However, unforeseen events, such as the COVID-19 pandemic, have revealed that firms may encounter unfair outcomes from a strict compliance with their contract terms. Implied force majeure emerges as a tool when global disruptions make performance for a contract incredibly difficult or commercially impossible, in which case the court can modify the contract to reflect the reality and provide equitable relief without violating the sanctity of contracts.
To ensure implied force majeure is applied appropriately and does not undermine contractual integrity, clear criteria must be set:
- The event must be unforeseeable at the time the contract was made.
- The event must be beyond the control of the affected parties.
- The event must fundamentally disrupt performance (though not necessarily make it impossible).
By adhering to these standards, implied force majeure offers fair relief during exceptional circumstances, while preserving both legal certainty and business expectations.
V. Conclusion
The pandemic demonstrated how unforeseen circumstances can upset business on a previously unimaginable level, and it will not be fair and reasonable for parties to hold themselves liable for unforeseen circumstances that are outside their control. Whilst traditional doctrines such as force majeure and frustration are required in the law of contract, they are too rigid to cater for contemporary global crisis. Implied force majeure would provide the courts with sufficient flexibility in arriving at fair outcomes where there are unforeseen disruptions.
To better respond to challenges like those presented by events such as COVID-19, Kenya, South Africa, and other common law jurisdictions must accommodate through a formal recognition of implied force majeure. It would enable courts to invoke this doctrine where unforeseen global events, including pandemics, natural disasters, or state restrictions, render contract performance impossible. It would, through this, offer a reasonable, adaptive solution for contract law, which does not unfairly blame business for something beyond its control, and also preserves the sanctity of contracts.
The COVID-19 pandemic revealed inadequacies within traditional contract law, and it is apparent that doctrines like force majeure and frustration are not as effective as they should be at addressing realities of contemporary global crises. With the global community increasingly integrated and subject to unexpected events, contract law’s need for adaptability is stronger than ever. Implied force majeure is a realistic solution that renders commercial entities not only able to claim reasonable relief against unforeseen disruptions but also maintains commercial certainty. With this approach, contract law can be rendered adaptable, fair, and relevant to a progressively emerging world.
- Haitao Zhang, ‘Force Majeure and Pandemic’ (2020) 13 International In-House Counsel Journal 1. ↑
- Ibid ↑
- Andrey A Chukreyev, ‘The Doctrine of Frustration in English Contract Law’ (2017) Law: Journal of Higher School of Economics 188. ↑
- Vernon Valentine Palmer, ‘Excused Performances: Force Majeure, Impracticability, and Frustration of Contracts’ (2022) 70(Supplement 1) The American Journal of Comparative Law i70. ↑
- Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd & another [2014] eKLR, where the court held as follows:[16] This now leads us to the issue of whether the agreement was genuinely frustrated.
In Halsbury’s Laws of England, Vol. 9(1), 4th Edition at paragraph 897:-
“As subsequently developed, the doctrine of frustration operates to excuse from further performance where: (1) it appears from the nature of the contract and the surrounding circumstances that the parties have contracted on the basis that some fundamental thing or state of things will continue to exist, or that some particular person will continue to be available, or that some future event which forms the basis of the contract will take place; and (2) before breach, an event in relation to the matter stipulated in head (1) above renders performance impossible or only possible in a very different way from that contemplated. This assessment has been said to require a ‘multi-factorial’ approach. Five propositions have been set out as the essence of the doctrine. First, the doctrine of frustration has evolved to mitigate the rigour of the common law’s insistence on literal performance of absolute promises so as to give effect to the demands of justice. Secondly, the effect of frustration is to discharge the parties from further liability under the contract, the doctrine must not therefore be lightly invoked but must be kept within very narrow limits and ought not to be extended. Thirdly, the effect of frustration is to bring the contract to an end forthwith, without more and automatically. Fourthly, the essence of frustration is that it should not be due to the act or election of the party seeking to rely upon it, but due to some outside event or extraneous change of situation. Fifthly, that event must take place without blame or fault on the side of the party seeking to rely upon it; nor does the mere fact that a contract has become more onerous allow such a plea.” ↑
- Davis Contractors LTD -vs- Farehum U.D.C [1956] A.C 696, Lord Radcliffe at page. 729 held:“…frustration occurs whenever the law recognizes that, without the default of either party a contractual obligation has become incapable of being performed because the circumstances in which the performance is called for would render it a thing radically different from that which was undertaken by the contract. “Non haec in foedera veni”. It was not what I promised to do”. ↑
- Sagi Peari and Zamir R Golestani, ‘A Theory of Frustration and Its Effect’ (2022) 43(2) Liverpool Law Review 263. ↑
- Amy Sparrow Phelps, ‘Contract Fixer Upper: Addressing the Inadequacy of the Force Majeure Doctrine in Providing Relief for Nonperformance in the Wake of the COVID-19 Pandemic’ (2021) 66 Villanova Law Review 647. ↑
- Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology [2024] KESC 74 (KLR) ↑
- SB Guarantee Company (RF) Property Limited v Mogale and Another (22695/2021) [2023] ZAGPPHC 1852 (27 October 2023) ↑
- Électricité de France (EDF) v Total Direct Energie (TDE) (Paris Commercial Court, 20 May 2020) ↑
- Électricité de France (EDF) v. Total Direct Energie (TDE), (Paris Commercial Court, May 2020). The case found that the COVID-19 pandemic qualified as a force majeure event under the energy supply agreement between EDF and TDE, considering it to be an unforeseeable, irresistible event that hindered contractual performance. ↑
- The doctrine of frustration traditionally applies when the performance of a contract becomes objectively impossible, requiring an event that fundamentally alters the contract’s obligations, not merely makes them more difficult or commercially impractical. See Davis Contractors Ltd v. Fareham U.D.C. (1956), A.C. 696, where the House of Lords emphasized that frustration applies only when performance becomes radically different from what was initially agreed upon, not simply more burdensome. ↑
- Marcelo Compagnucci et al., ‘The Many Layers and Dimensions of Contract Design’ in Research Handbook on Contract Design (Edward Elgar Publishing 2022) 2-18. ↑