A force majeure event occurs, and suddenly it is everywhere, on the news, across social media, in business discussions, and even in legal commentary. Everyone is talking about it. But the real issue is not how widely the event is discussed or how serious it appears. The real question is whether it will actually affect your contract, your business, or your legal obligations. For an event to qualify as force majeure, it must generally have been unforeseeable at the time of contracting, unavoidable by reasonable means, and, most importantly, it must have rendered performance impossible.
Under UAE law, force majeure is measured by what it does to the obligation itself. The real test is impossibility. Article 273(1) of the UAE Civil Transactions Law provides that, in bilateral contracts, if force majeure supervenes and makes performance of the obligation impossible, the corresponding reciprocal obligation is extinguished and the contract is terminated automatically by operation of law. The law is therefore not asking whether performance became harder, more expensive, or commercially unattractive; it is asking whether it became impossible.
That is why the distinction between the three forms of impossibility, total impossibility, partial impossibility, and temporary impossibility, is significantly important. Where impossibility is total, the reciprocal obligation falls away in full. Where it is partial, only the corresponding part of the counter-obligation falls away to the same extent. And where impossibility is temporary, particularly in continuing contracts such as supply agreements, the contract may not be terminated at all. In such cases, the legal effect may be confined to the period during which performance was impossible, rather than extending to the contract as a whole.
Article 273(2) provides that, in cases of partial or temporary impossibility, the creditor may rescind the contract, provided the debtor is notified. This means that the legal outcome is not always automatic; it may depend on the nature of the contract, the extent and duration of the disruption, and the position taken by the affected party. What appears at first glance to be a single force majeure event may therefore produce very different consequences, depending on whether the impossibility was total, partial, or only temporary.
This is precisely where the mischaracterization dilemma begins, when an event is hastily labelled as force majeure while it is legally something else, either because the legal elements of force majeure are not satisfied, or because the event produces a different legal effect, such as the extinction of the subject matter of the contract or the failure of the contractual cause. In many disputes, the difficulty lies not in the event itself, but in how it is legally characterised.
In lease agreements, it is often more realistic to encounter partial or temporary impossibility rather than total impossibility. If the leased property is partially affected, becomes unusable for a period, or the lessee is temporarily unable to use it, the analysis may turn on the extent and duration of that interference. However, if the property is completely destroyed, the issue may move beyond force majeure altogether given the nature of the lease contract, because the subject matter of the lease itself no longer exists. In such a situation, the lease is extinguished by the total destruction of the leased property, regardless of whether the cause of that destruction is classified as force majeure.
In hospitality, the analysis is different. This is a highly dynamic sector built around short stays, bookings, events, seasonality, and the movement of non-residents and tourists. An event that significantly affects the sector does not automatically establish force majeure. The analysis may differ depending on whether the issue arises between the owner and the management company, or between the management company and the guests. In the case of guests, the stay is often driven by leisure, travel, or temporary convenience, which means that safety concerns, travel warnings, or regional instability may affect the practical willingness to perform even where physical impossibility is harder to establish. For that reason, force majeure clauses in hospitality contracts should be drafted carefully and reviewed periodically.
A similar caution applies in other sectors where performance is highly time-sensitive and commercially exposed, particularly in supply and distribution. Transport interruptions, customs measures, sourcing problems, or route closures may place significant pressure on performance. In many such situations, the immediate difficulty is that the consequences of the event may remain uncertain, whether they will result in delay, disruption, or actual non-performance. The legal analysis must therefore focus not only on whether the event ultimately prevented performance of the obligation, but also on when the impact arose, how long it lasted, and whether time itself was an essential element of performance.
In conclusion, force majeure is often invoked most easily at the very moment it should be examined most carefully. In times of crisis, the real question is not whether the event was serious, public, or disruptive. The real question is narrower, and far more important: what did the event do to the obligation itself? And if the contract called it force majeure, but the facts only proved inconvenience, delay, or loss?
Disclaimer
The content provided in this article is intended for informational purposes only and does not constitute legal advice. While every effort has been made to ensure the accuracy and completeness of this information, the article does not offer a guarantee or warranty regarding its content. The matters discussed in this article are subject to interpretation, and legal outcomes may vary based on specific facts and circumstances. We recommend that readers seek individual legal counsel before making any decisions based on the information provided. If you require specific legal advice, please contact us directly.