Act of God

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This tornado damage to an Illinois home could be considered an "act of God" for insurance purposes in the United States, if the insurance policy did not specifically account for tornadoes. Tornado Damage, Illinois 2.JPG
This tornado damage to an Illinois home could be considered an "act of God" for insurance purposes in the United States, if the insurance policy did not specifically account for tornadoes.

In legal usage in the English-speaking world, an act of God, act of nature, or damnum fatale ("loss arising from inevitable accident") is an event caused by no direct human action (e.g. severe or extreme weather and other natural disasters) for which individual persons are not responsible and cannot be held legally liable for loss of life, injury, or property damage. [2] [3] [4] [5] An act of God may amount to an exception to liability in contracts (as under the Hague–Visby Rules), [6] or it may be an "insured peril" in an insurance policy. [7] In Scots law, the equivalent term is damnum fatale, [8] while most Common law proper legal systems use the term act of God. [9]

Contents

It is legally distinct from—though often related to—a common clause found in contract law known as force majeure . [10] In light of the scientific consensus on climate change, its modern applicability has been questioned by legal scholars. [11]

Contract law

In the law of contracts, an act of God may be interpreted as an implied defense under the rule of impossibility or impracticability. If so, the promise is discharged because of unforeseen occurrences, which were unavoidable and would result in insurmountable delay, expense, or other material breach. [12]

Under the English common law, contractual obligations were deemed sacrosanct, so failure to honor a contract could lead to an order for specific performance or internment in a debtor's prison. In 1863, this harsh rule was softened by the case of Taylor v Caldwell which introduced the doctrine of frustration of contract, which provided that "where a contract becomes impossible to perform and neither party is at fault, both parties may be excused their obligations". In this case, a music hall was burned down by act of God before a contract of hire could be fulfilled, and the court deemed the contract frustrated. [13]

In other contracts, such as indemnification, an act of God may be no excuse, and in fact may be the central risk assumed by the promisor—e.g., flood insurance or crop insurance—the only variables being the timing and extent of the damage. In many cases, failure by way of ignoring obvious risks due to "natural phenomena" will not be sufficient to excuse performance of the obligation, even if the events are relatively rare: e.g., the year 2000 problem in computers. Under the Uniform Commercial Code, 2-615, failure to deliver goods sold may be excused by an "act of God" if the absence of such act was a "basic assumption" of the contract, and the act has made the delivery "commercially impracticable". [14]

Recently, human activities have been claimed to be the root causes of some events previously considered natural disasters. In particular:

As a general principle of act of God, [17] epidemic can be classified as an act of God if the epidemic was unforeseeable and renders the promise discharged if the promisor cannot avoid the effect of the epidemic by exercise of reasonable prudence, diligence and care, or by the use of those means which the situation renders reasonable to employ. [18]

Tort law and delict law

UK – England and Wales

An act of God is an unforeseeable natural phenomenon. Explained by Lord Hobhouse in Transco plc v Stockport Metropolitan Borough Council as describing an event:

  1. which involves no human agency
  2. which is not realistically possible to guard against
  3. which is due directly and exclusively to natural causes and
  4. which could not have been prevented by any amount of foresight, plans, and care.

UK – Scotland

In Tennant v Earl of Glasgow (1864 2 M (HL) 22) Lord Chancellor Westbury described a case as: "what is denominated in the law of Scotland damnum fatale — occurrences and circumstances which no human foresight can provide against, and of which human prudence is not bound to recognize the possibility; and which, when they do occur, therefore, are calamities that do not involve the obligation of paying for the consequences that may result from them." [19]

United States

In the law of torts, an act of God may be asserted as a type of intervening cause, the lack of which would have avoided the cause or diminished the result of liability (e.g., but for the earthquake, the old, poorly constructed building would be standing). However, foreseeable results of unforeseeable causes may still raise liability. For example, a bolt of lightning strikes a ship carrying volatile compressed gas, resulting in the expected explosion. Liability may be found if the carrier did not use reasonable care to protect against sparks—regardless of their origins. Similarly, strict liability could defeat a defense for an act of God where the defendant has created the conditions under which any accident would result in harm. For example, a long-haul truck driver takes a shortcut on a back road and the load is lost when the road is destroyed in an unforeseen flood. Other cases find that a common carrier is not liable for the unforeseeable forces of nature. See Memphis & Charlestown RR Co. v. Reeves, 77 U.S. 176 (1870).

One example is that of "rainmaker" Charles Hatfield, who was hired in 1915 by the city of San Diego to fill the Morena reservoir to capacity with rainwater for $10,000. [20] The region was soon flooded by heavy rains, nearly bursting the reservoir's dam, killing nearly 20 people, destroying 110 bridges (leaving 2), knocking out telephone and telegraph lines, and causing an estimated $3.5 million in damage in total. When the city refused to pay him (he had forgotten to sign the contract), he sued the city. The floods were ruled an act of God, excluding him from liability but also from payment. [21]

See also

Related Research Articles

In law and insurance, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate cause. Cause-in-fact is determined by the "but for" test: But for the action, the result would not have happened. The action is a necessary condition, but may not be a sufficient condition, for the resulting injury. A few circumstances exist where the but-for test is ineffective. Since but-for causation is very easy to show, a second test is used to determine if an action is close enough to a harm in a "chain of events" to be legally valid. This test is called proximate cause. Proximate cause is a key principle of insurance and is concerned with how the loss or damage actually occurred. There are several competing theories of proximate cause. For an act to be deemed to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact.

A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

Delict is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of wrongful conduct.

In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.

In American jurisprudence, an excuse is a defense to criminal charges that is a distinct from an exculpation. Justification and excuse are different defenses in a criminal case. Exculpation is a related concept which reduces or extinguishes a person's culpability, such as their liability to pay compensation to the victim of a tort in the civil law.

In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a suit or action brought against the party, and may be based on legal grounds or on factual claims.

<span class="mw-page-title-main">Force majeure</span> Suspension of contractual obligations during extreme circumstances

In contract law, force majeure is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, epidemic, or sudden legal change prevents one or both parties from fulfilling their obligations under the contract. Force majeure often includes events described as an act of God, though such events remain legally distinct from the clause itself. In practice, most force majeure clauses do not entirely excuse a party's non-performance but suspend it for the duration of the force majeure.

<span class="mw-page-title-main">Capacity (law)</span> Legal aptitude to have rights and liabilities

Legal capacity is a quality denoting either the legal aptitude of a person to have rights and liabilities, or altogether the personhood itself in regard to an entity other than a natural person.

<span class="mw-page-title-main">Delict (Scots law)</span> Actionable civil wrongs in Scots law

Delict in Scots law is the area of law concerned with those civil wrongs which are actionable before the Scottish courts. The Scots use of the term 'delict' is consistent with the jurisdiction's connection with Civilian jurisprudence; Scots private law has a 'mixed' character, blending together elements borrowed from Civil law and Common law, as well as indigenous Scottish developments. The term tort law, or 'law of torts', is used in Anglo-American jurisdictions to describe the area of law in those systems. Unlike in a system of torts, the Scots law of delict operates on broad principles of liability for wrongdoing: 'there is no such thing as an exhaustive list of named delicts in the law of Scotland. If the conduct complained of appears to be wrongful, the law of Scotland will afford a remedy even if there has not been any previous instance of a remedy being given in similar circumstances'. While some terms such as assault and defamation are used in systems of tort law, their technical meanings differ in Scottish delict.

<span class="mw-page-title-main">Impossibility of performance</span> In law, the impossibility of performing a contractual duty

The doctrine of impossibility or impossibility of performance or impossibility of performance of contract is a doctrine in contract law.

<span class="mw-page-title-main">Frustration of purpose</span> Defence in contract law

Frustration of purpose, in law, is a defense to enforcement of a contract. Frustration of purpose occurs when an unforeseen event undermines a party's principal purpose for entering into a contract such that the performance of the contract is radically different from performance of the contract that was originally contemplated by both parties, and both parties knew of the principal purpose at the time the contract was made. Despite frequently arising as a result of government action, any third party or even nature can frustrate a contracting party's primary purpose for entering into the contract. The concept is also called commercial frustration.

<span class="mw-page-title-main">Canadian tort law</span> Aspect of Canadian law

Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. Meanwhile, while private law as a whole in Québec was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of tort law as part of its provisions on the broader law of obligations. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.

<span class="mw-page-title-main">Good faith (law)</span> Implied covenant of honesty and fair dealing in contract law

In contract law, the implied covenant of good faith and fair dealing is a general presumption that the parties to a contract will deal with each other honestly, fairly, and in good faith, so as to not destroy the right of the other party or parties to receive the benefits of the contract. It is implied in a number of contract types in order to reinforce the express covenants or promises of the contract.

Vis major is a greater or superior force; an irresistible force. It may be a loss that results immediately from a natural cause that could not have been prevented by the exercise of prudence, diligence and care. It is also termed as vis divina or superior force.

<span class="mw-page-title-main">Impracticability</span>

The doctrine of impracticability in the common law of contracts excuses performance of a duty, where the said duty has become unfeasibly difficult or expensive for the party who was to perform.

Professional liability insurance (PLI), also called professional indemnity insurance (PII) but more commonly known as errors & omissions (E&O) in the US, is a form of liability insurance which helps protect professional advising, consulting, and service-providing individuals and companies from bearing the full cost of defending against a negligence claim made by a client in a civil lawsuit. The coverage focuses on alleged failure to perform on the part of, financial loss caused by, and error or omission in the service or product sold by the policyholder. These are causes for legal action that would not be covered by a more general liability insurance policy which addresses more direct forms of harm. Professional liability insurance may take on different forms and names depending on the profession, especially medical and legal, and is sometimes required under contract by other businesses that are the beneficiaries of the advice or service.

<span class="mw-page-title-main">English contract law</span> Law of contracts in England and Wales

English contract law is the body of law that regulates legally binding agreements in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the Industrial Revolution, it shares a heritage with countries across the Commonwealth, from membership in the European Union, continuing membership in Unidroit, and to a lesser extent the United States. Any agreement that is enforceable in court is a contract. A contract is a voluntary obligation, contrasting to the duty to not violate others rights in tort or unjust enrichment. English law places a high value on ensuring people have truly consented to the deals that bind them in court, so long as they comply with statutory and human rights.

<span class="mw-page-title-main">Contract</span> Legally binding document establishing rights and duties between parties

A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of those at a future date. The activities and intentions of the parties entering into a contract may be referred to as contracting. In the event of a breach of contract, the injured party may seek judicial remedies such as damages or equitable remedies such as specific performance or rescission. A binding agreement between actors in international law is known as a treaty.

Legal protection insurance (LPI), also known as legal expenses insurance (LEI) or simply legal insurance, is a particular class of insurance which facilitates access to law and justice by providing legal advice and covering the legal costs of a dispute, regardless of whether the case is brought by or against the policyholder. Depending on the national rules, legal protection insurers can also represent the policyholder out-of-court or even in-court.

In Bulgaria, the law of obligations is set out by the Obligations and Contracts Act (OCA). According to article 20a, OCA contracts shall have the force of law for the parties that conclude them.

References

  1. "Insurance: What exactly constitutes an "Act of God"?". CBS News. 30 July 2015. Retrieved 7 July 2020.
  2. "Definition of DAMNUM FATALE". www.merriam-webster.com. Retrieved 19 May 2023.
  3. "act of God". Oxford Reference. Retrieved 10 March 2024.
  4. "act of God". Legal Information Institute. Cornell Law School. Retrieved 6 June 2024.
  5. "act of nature". Legal Information Institute. Cornell Law School. Retrieved 6 June 2024.
  6. Art. IV (2) "Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from: ... (d) Act of God"
  7. Marine Insurance Act 1906 – Rules for construction of policy
  8. Bryan A. Garner (2001). A Dictionary of Modern Legal Usage. Oxford University Press. p. 918. ISBN   978-0-19-514236-5.
  9. Black, Henry Campbell (1990). Black's Law Dictionary (6th ed.). Saint Paul, Minnesota: West Publishing Co. p.  33. ISBN   0-314-76271-X.
  10. LII / Legal Information Institute. “Force Majeure.” Retrieved January 21, 2024. https://www.law.cornell.edu/wex/force_majeure.
  11. Dellinger, Myanna (2016). "An 'Act of God'? Rethinking Contractual Impracticability in an Era of Anthropogenic Climate Change". Hastings Law Journal . 67 (6). University of California, Hastings College of the Law: 1551–1620. Retrieved 6 June 2024.
  12. "Tour de Force: What Constitutes an "Act of God," and Other Developments in Force Majeure Law". Pillsbury Law. Retrieved 28 February 2024.
  13. "Taylor v Caldwell - 1863". www.lawteacher.net. Retrieved 28 February 2024.
  14. "Force Majeure Clauses: Key Issues in Selected Commercial Transactions". Practical Law. Retrieved 28 February 2024.
  15. "Beben nach Erdwärmeprojekt – Gericht spricht Schweizer Geologen frei". Der Spiegel. 22 December 2009. Retrieved 28 November 2012.
  16. Whitelaw, Claire; Robert Sanders (9 June 2008). "Javan mud volcano triggered by drilling, not quake" . Retrieved 22 February 2011.
  17. Gordon D. Kaufman Vol. 61, No. 2 (Apr., 1968), pp. 175–201
  18. Starr, Samuel M. Tony; Roy, Alyssa B.; Leonard, Kaitlyn C.; Prober, Clare. "What the COVID-19 Pandemic Means for Force Majeure Provisions". www.mintz.com. Retrieved 2020-03-31.
  19. "Hugh Tennent v. The Earl of Glasgow - [1864] UKHL 2_Paterson_1229 - United Kingdom House of Lords - Judgment - Law". CaseMine. Retrieved 24 June 2021.
  20. "It's Raining Man!". San Diego History Center | San Diego, CA | Our City, Our Story. Retrieved 28 February 2024.
  21. "The Great Flood of 1916 - South Bay Historical Society". sunnycv.com. Retrieved 28 February 2024.