Lawyers are warning growers to stay informed about how any shortfalls, as a result of this year's unprecedented weather, will be addressed with buyers.
So far, 2024 has been the year of rain. For the UK, the 18 months to March 2024 ranks as the fourth wettest on record.
The NFU has recently indicated that harvest prospects are predicted to be lower than average for many growers in England.
Some businesses will be concerned that they will not be able to fulfil their contractual obligations as a result.
Lawyers as well as NFU representatives are warning growers, many of whom are already enduring reductions in income, to stay informed about how any shortfalls will be addressed with buyers.
Amy Peacey, a partner with law firm Clarke Willmott LLP, said most commercial contracts contained force majeure provisions which may help.
The purpose of a force majeure clause is to excuse a party from performance of their contractual obligations following the occurrence of an event which is beyond that party’s reasonable control, such as adverse weather conditions.
"The force majeure event will either prevent or sometimes just hinder or delay the performance of the contractual obligation," Ms Peacey said.
“The scope, operation and effect of a force majeure clause will depend on the drafting of the clause.
"The clause will determine whether the agreement continues, is suspended, or is terminated on the occurrence of the force majeure event.”
Every contract will have its own definition of force majeure. Some definitions will include an exhaustive list of events and/or circumstances which are considered to be beyond a party’s reasonable control.
These exhaustive lists may include reference to adverse weather and/or flooding, while other contracts may include a more general definition such as “any event or circumstance outside of the party’s reasonable control”.
As to whether adverse weather conditions will be caught by the definition will be a matter of interpretation, lawyers say.
The full terms of the contract along with the circumstances of the situation will need to be assessed to determine whether the grower can rely on the force majeure provisions.
Some force majeure clauses include a qualification that the event was not reasonably foreseeable or would have been impossible to plan for or avoided. The inclusion of this wording clearly affects the ability to rely on the clause.
Ms Peacey continued: “If you are seeking to rely upon the force majeure clause you will need to show that the adverse weather is the cause of your failure to fulfil your contractual obligations.
“If the contract is silent on force majeure, you will need to look to the other terms of the contract or the common law to determine if you have an excuse for non-performance.”
