In a cause for performance of contractual obligations, “act of God” rule could be a good defense provided; the party to the contract has not expressed an obligation to perform under all circumstances. Some Courts impose liability on the non-performer stating that an act of God does not relieve the parties of their contractual obligations unless the contract expressly provides otherwise.
Commercial impracticability can be a reason for non performance of a contractual obligation. However, it has to be proved that the party did not assume the risk of the event’s occurrence while contracting.
Force majeure is the natural and unavoidable catastrophe that interrupts the expected course of events. A force majeure provision in contract provides for impossibility of performance due to an act of God. In such a case, the party should prove that all other provisions of the contract have been complied with. The test to determine the occurrence of a force majeure event is whether the force majeure event was not reasonably foreseeable in the ordinary course of the industry and that it was beyond the reasonable control of the party.
In statutory liability cases, the “act of God” principle can be invoked to escape from liability. In actions such as workers compensation liability claims, liability arising under state environmental protection statutes, and mortgage foreclosure actions, state statutes may also provide that an act of God is a defense. However, the defense of “act of God” may also be excluded by a statute.
“Act of God” principle may be accepted as a valid defense in torts. In order to apply this principle, it has to be proved that the party had exercised proper care and caution. If the harm was caused by negligence of a party and was aggravated by “act of God,” liability would lie on the negligent party for the damages caused. In certain cases, the damages may be apportioned between those caused by unnatural force of nature and those caused by human negligence.