Foreseeability
contain such a requirement. One of the leading cases on control deals with a lessee, asserting the applicability of the Clause, had advance notice of the event which would interrupt production and had time to implement potential alternatives. The court clearly found that a fact issue existed on whether the lessee had control over the force majeure events or control over the alternatives which would negative the impact the contemplated events. One key observation to be made is that the more general descriptions of what is and is not a force majeure event are usually followed (at the end of the Clause) by language requiring that the qualifying event be beyond the control of the lessee. The position of the “control” clause relative to other more specifically defined events can be very important in determining if the force majeure event comes within the ambit of the Clause. “..Here, the parties concluded their litany of force majeure events by mentioning causes beyond the lessee’s control. Given this, and the teachings of PPG and Hydrocarbon, we hold that the juxtaposition evinced an intent that the qualification regarding control apply to each of the foregoing force majeure events. So, before any event can be successfully invoked as force majeure by the Sun Parties, it must be outside their reasonable control...” Even where the Clause is silent on control of the event by the lessee, if it is found that the lessee had control over the event and did not exercise same, the Clause will not be applied to the asserted force majeure event. When construing a lease similar to the lease in this case, the Corpus Christi Court of Appeals reached a similar conclusion. See Albrecht, 878 S.W.2d 236. Similar to this lease, the lease did not contain the phrase ‘ beyond the reasonable control of the lessee.’…. Because the operator had failed to comply with its regulations, the Railroad Commission ordered a well shut- in. ... The court held the force-majeure clause was not triggered because the compliance was within the reasonable control of the lessee. Id.” (emphasis added) “
Foreseeability, as a qualifying element allowing the imposition of the Clause, does not appear today to be an element that must be negated by the lessee where the Clause specifically identifies the force majeure event at issue. Control over the event by the lessee, on the other hand, is and remains a key element of proof that the lessee must negative in order in invoke and rely on the force majeure clause. In the author’s opinion, regardless whether the lessee could foresee/anticipate the event sought to be declared a force majeure event, as long as the lessee did not have control over the event, it will stand as a force majeure event allowing for the assertion of a force majeure defense to a breach of contract action by the lessor.
Change in the Law
The case of Hydrocarbon Mgmt., Inc. v. Tracker Exploration, Inc. signaled a change in the interpretation of the Clause by Texas courts. The courts now look even more carefully at the defined events set forth in the Clause which are deemed to be force majeure events. The courts are not willing to rewrite the oil and gas lease for the parties. That is, the application of the Clause is directly dependent upon the terms of the contract in which it appears. As a corollary to the above general rule, unless otherwise stated in the Clause, the lessee does not have to take steps to avoid, cure or find alternatives to the force majeure event(s) taking place. If a force majeure event is described in the Clause and takes place, all time periods set forth in the lease as well as all acts required to be performed thereunder are suspended during the pendency of the force majeure event. Common law rules regarding the interpretation of the Clause yield to the express terms found in the Clause. The common law rules only apply where the Clause is silent whether any possible event is in fact a force majeure event. This general rule is subject to the control a lessee has over the event, even if specifically enumerated. Thus, where a lessee fails to comply with a specific Texas Railroad Commission order, and such compliance was within the reasonable control of the lessee, the Clause is not triggered.
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