Clause by Clause: Force Majeure

Hi Pub Crawlers! This is the second installment in my series on contract clauses. Previously I talked about Options. Today, I’m going to talk about Force Majeure.

What is a Force Majeure clause? 

Force Majeure is Latin for “superior force.” A Force Majeure clause allows the Publisher to suspend (or in some cases terminate) its obligations under the contract in the event that circumstances beyond its control arise and prevent it from satisfying its contractual obligations for any number of reasons.

These uncontrollable reasons may include but are not limited to: natural disasters, war, strikes, or acts of God. Yup, you read that last one correctly. Some contracts will go so far as to name-drop God.

What obligations can the Publisher suspend under Force Majeure? All of them. But the most likely obligations to be affected are related to production. Many United States Publishers actually print their books overseas. If the employees of the printing company overseas go on strike, or if the factory burns down or floods, or if the country where the printer is located becomes involved in a war, or if some other unforeseen incident occurs beyond the scope of the Publisher’s control, then the Publisher may be unable to publish your book on the intended schedule. The Force Majeure clausenexists to  protect the Publisher against further loss (remember, the Publisher has invested in this book so any time things deviate from the proposed schedule, or if books were lost in a fire and need to be reprinted, the Publisher is swallowing a huge loss). The Publisher’s failure to publish the book in the event of Force Majeure will not be considered a breach of contract.

Risks

In the many years I’ve worked in publishing I have never once known of an instance in which Force Majeure was invoked.  Publishers have solid, established relationships with their printers, and any major disruption to the point where publication is made impossible is very rare. It is more likely (though I still don’t personally know of an instance where this has happened) that a Force Majeure incident causes delays in publication rather than the total inability to publish. And if the Publisher does choose to terminate (meaning: not publish at all) rather than suspend (meaning: publish on a delay) then check your Rights of Termination clause! Almost always the complete rights in the work are reverted to the Author in the event of termination. You can then take your rights and sell your book elsewhere.

Risks to the Author are that the book may not be published on time or at all, but–and I must stress this–those risks exist even if there’s no Force Majeure clause in your contract. What the Force Majeure does is protect the Publisher. You can’t bring your Publisher to court for breach of contract if the reason for the unfulfilled obligation is due to Force Majeure.

Rewards

No particular rewards here. This is entirely preventative. The best case for Force Majeure is that it never needs to be used.

Can this clause be mutual?

When a clause is mutual that means it applies to both parties. Force Majeure is almost never mutual. This is not to suggest that Authors don’t come up against road blocks while under contract. If you are grieving the loss of a loved one, if you become injured or ill, if your computer is stolen or your house burns down–those are just a few examples of things that might happen that would make it difficult to hit your deadlines. But those are not Force Majeure.

Your contract will have built-in language about the delivery and acceptance of your manuscript and what happens if you miss your deadline (and if it doesn’t, hey! We’ll talk about that in a future installment). And editors are nearly always willing to grant extensions if and when you ask (important piece of advice: ASK. If you aren’t going to hit your deadline, tell your editor immediately. The sooner the better. Editors are sensitive to the curveballs life can throw, and they want to work with you any way they can. Giving them as much notice as possible makes it easier for them to work with you and be flexible. If you wait until the last minute that makes it much harder on them, as production schedules are likely already finalized. Talk to your editor as soon as possible. Be honest. Let them help you).

Negotiability

Some clauses are negotiable, some are not. Force Majeure is not. (I’m sure someone out there has successfully negotiated a Force Majeure clause. I can’t speak to all circumstances for all Publishers and all Authors. But that’s probably the exception that proves the rule).

If you’ve got questions about contracts, or have a suggestion for which clause I should break down next, let me know in the comments!

     

3 Responses to Clause by Clause: Force Majeure

  1. Anna Jordan Aug 19 2016 at 1:52 pm #

    I wonder if, because I like these posts so much, I should be in contracts. Hmmm… I think you’ve spoken about this on the podcast but did you start in another department in publishing? Are you an attorney?

    • Kelly
      Kelly Aug 19 2016 at 2:37 pm #

      Hi Anna!

      I am not a lawyer or a paralegal. I’ve simply worked with contracts for a very long time. My first job in the publishing industry as a literary agent’s assistant. Part of my job was to read all contracts and compare them to the terms my boss negotiated to confirm that they were correct.

      Later I worked at a different literary agency in foreign rights, handling the contracts for all foreign sales.

      Eventually I moved into working with contracts full time on the Publisher side of the fence.

      Having legal experience is of course a bonus, and will be hugely attractive on an application. But I had never intended to work in contracts–I’d always assumed I’d stay in editorial. But I had a particular knack for them and followed where they led me! I’ve become surprisingly passionate about contracts because I am a champion for writers and want them to make the best career decisions possible for themselves.

  2. lisa ciarfella Aug 21 2016 at 8:56 pm #

    thanks for this. Interesting!

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