No statutory recognition.

Yes. FM must be expressly referred to and defined in a contract. Parties have the freedom to agree on the risk allocation and determination of a FM event.

No, save as provided for in the contract. In the result:

• formalities would be dependent on the specific wording of the FM clause and the factual circumstances;
• generally, the party relying on the FM clause has the burden of proving the FM event by producing evidence of the impact of the event; and
• most FM clauses require notice in accordance with specific time-periods set out in the contract and include time barring.

No, save as provided for in the contract.

Generally, the affected party is required to use reasonable endeavors or diligence to overcome or mitigate the impact of the FM event.

Depends on the specific wording of the FM clause.

Generally performance is suspended for the duration of the FM event, coupled to extension of times for such performance where applicable.

In the case of extended or permanent FM events, the clause may provide for termination.

Supervening impossibility of performance.

As a general rule impossibility of performance brought about by an FM event (vis major or casus fortuitus) will excuse performance of a contract where:

1. the consequences of the event were not within the contemplation of the parties at the time of contracting; or
2. where the parties have not expressly agreed that the risk of impossibility of performance will fall on the debtor

It is necessary to determine the nature of the contract, the relationship between the parties, the circumstances of the case, and the nature of the impossibility invoked.

The rule will not avail a party if the impossibility is self-created or they at fault for the impossibility