INTRODUCTION
I will talk about the case of State of UP v.
Mcdowell & Co. Ltd., 2022 SCC OnLine SC 15, wherein the Hon’ble
Supreme Court discussed the concept of ‘Act of God’ or vis major. We hear
this term frequently and it is often used as an excuse for not doing something.
Many a times, natural events such as floods,
earthquakes, storms etc. occur and due to such acts, one of the parties to a
Contract is not able to fulfil its part of the obligation. In such cases, ‘Act
of God’ or vis major is often cited as a reason for non-performance and
for escaping liability.
MEANING
Vis major is a Latin term that literally
means “a superior force” and is defined as “a loss that
results immediately from a natural cause without human intervention and that
could not have been prevented by the exercise of prudence, diligence and care.”
Thus, we see that “any event so out of the
ordinary that it could not have been prevented by any amount of human care and
forethought” could be termed as ‘Act of God’ or vis major.” Further, ‘Act
of God’ “may be thought to include such unexpected occurrences of nature
as severe gale, snowstorms, hurricanes, cyclones and tidal-bures. But every
unexpected wind and storm does not operate as an excuse from liability, if
there is a reasonable possibility of anticipating their happening.”
FORCE MAJEURE V. VIS MAJOR
Further, vis major is not to be confused
with force majeure that is a French term also meaning “a superior
force.” However, in legal parlance, force majeure signifies both
the acts of nature and the acts of people that cannot be anticipated or
controlled whereas vis major is a term that specifically connotes to
natural causes. Presently, we are only concerned with vis major and not force
majeure.
ACT OF GOD
In the present case, the Court also explained that
“an act of God is that which is a direct, violent, sudden and
irresistible act of nature as could not, by any amount of ability, have been
foreseen, or if foreseen, could not by any amount of human care and skill have
been resisted. Generally, those acts which are occasioned by the elementary
forces of nature, unconnected with the agency of man or other cause will come
under the category of acts of God. Examples are storm, tempest, lightning,
extraordinary fall of rain, extraordinary high tide, extraordinary severe
frost, or a tidal bore which sweeps a ship in mid-water. What is important here
is that it is not necessary that it should be unique or that it should happen
for the first time. It is enough that it is extraordinary, and such as could
not reasonably be anticipated.”
VIS MAJOR, ACT OF GOD AND FIRE
Lastly, the Court discussed that a fire that takes
place in industries or go-downs could not be termed as an ‘Act of God’ because
even though, as a rule, negligence is not to be presumed but where there is no
external natural force such as storm, flood, lightning, earthquake etc., it is
not possible to presume that mere happening of a fire is an ‘Act of God’.
Thus, I hope that the meaning and the scope of vis
major or ‘Act of God’ is clear by now.
Nice
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