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Last edited 13 Jul 2023
The term may be used in relation to force majeure, although also related to events beyond the reasonable control of a party, which prevent or impede their ability to perform their obligations under a contract, force majeure maybe be a more significant and contractual occurrence. Generally these cannot be event that a party could reasonably have avoided or overcome, or one attributable to the other party.
The term may also be used in relation frustration in construction contracts, though again this generally has greater significance and impact because it leads to the contract being terminated without either party being considered to be in breach.
The term extenuating circumstances tends to be used as a reasoning for a particular outcome, so rendering the conduct less serious or potentially lead to reduced damages. It is most commonly used in relation to employment but it iimportant o note that extenuating circumstances under employment law are likely to differ from those that may be considered under a building contract.
In most cases it is a complex interpretable subject in any context. For example serious medical issues with staff maybe presented as extenuating circumstances to be considered, however within a building contract, it could be responded to that the impacts on the project may have been avoided, if other staff had been made available. Unless many staff became unavailable, due to for example a pandemic.
It is common in some cases for examples of extenuating circumstances to be given within the contract itself to avoid confusion. Here are some examples of what might be considered as extenuating circumstances, though they would have to be agreed ideally before and if not after the event.
- Medical issues (including mental health/wellbeing)
- Death of relatives
- Personal problems
- Personal or Family issues, such as divorce
- Period of self-isolation/quarantine
- Caring responsibilities and domestic difficulties
- Religious Observances
- Pregnancy related conditions
- Failure of IT equipment, where there is a verifiable failure
- Breach of contract.
- Clear contracts during uncertain times.
- Compensation event.
- Concurrent delay.
- Consequential loss.
- Coronavirus and force majeure.
- Extension of time.
- Force majeure.
- frustration in construction contracts.
- Loss and expense.
- Liquidated damages.
- Neutral event.
- Relevant event.
- Suspension of performance.
- Termination in construction contracts.
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