Can I force Majeure?

PsyGuy
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Post by PsyGuy »

@Heliotrope

No, the IS can sue and then they will have to prove their case and that the ITs FM was invalid.

@SJ

Yes, there is a contract and unless that contract stipulates that FM is declared by insurance companies, embassies, or government, than its irrelevant. The IS is no superior a . to the contract then the IT is. Those penalties are annulled by declaration of FM, just as the contract would be annulled after the ISs declaration of FM.

Heliotrope
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Post by Heliotrope »

Nope. There was no FM certificate issued by the government to the IT which the IS will have to contest. FM is just the IT telling the school that it's FM.
A contract has been breached by the IT by not showing up for work. The school sues. The IT's defense will be that it's FM, pointing out the FM clause, but since you can't make a claim like that without specifying it and supporting it properly, the IT will have to prove why the pandemic makes it impossible for them to work and his declaration of FM was justified.
The IS can then just say that all other ITs are all still working and the IT loses.

But you know this. You're just trolling.
I'm just replying because I don't want anyone thinking they can try this only to be disappointed.
What are you going to do next, advise people to drink bleach or take hydroxychloroquine?

PsyGuy
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Post by PsyGuy »

@Heliotrope

No, a FM certificate isnt necessary, unless the contract stipulates such a certificate is required.
No, there is no breach, the contract is nullified upon FM. The IS sues, the IT claims FM, the IS must show the FM is invalid, and that the IT breached. The IS can claim a their other ITs are working, but those ITs arent a . to the ITs contract, and the IT wins. Assuming the IS can actually take this to court.

You know this, your just stubborn and trolling. You know the IS isnt going to file suite, and even if they do, unless the IT is still local they will not get this case to court. I dont want any of our readership to think that FM is only an out for ISs to dissolve a contract.

I wouldn't recommend anyone, even you, to drink bleach.

buffalofan
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Re: Reply

Post by buffalofan »

Heliotrope wrote:
> A contract has been breached by the IT by not showing up for work. The
> school sues. The IT's defense will be that it's FM, pointing out the FM
> clause, but since you can't make a claim like that without specifying it
> and supporting it properly, the IT will have to prove why the pandemic
> makes it impossible for them to work and his declaration of FM was
> justified.
> The IS can then just say that all other ITs are all still working and the
> IT loses.

Yeah this is pretty much what happened to a colleague at a place where I used to work, years back. Said colleague went home for the summer break, and then was banking on FM to get out of the contract (it was a volatile region). At the end of the summer, when it was clear that FM wasn't going to happen or be accepted, colleague started claiming their safety was in danger, etc. The school had none of it, contacted Search Associates and reported breach of contract.

PsyGuy
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Post by PsyGuy »

@buffalofan

So what if an IS reports to SA breach, that doesnt make it breach because the IS says so, and SA doesnt adjudicate FM and breach.

Illiane_Blues
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Re: Can I force Majeure?

Post by Illiane_Blues »

Having been through this myself, I can tell you both that the burden of proof lies with the teacher. I can also tell you that that the teacher has 0% chance of winning.

Don't take legal advice from anyone on this forum.
Your contract is not nullified upon declaring Force Majeure, unless you first prove in a court room that Force Majeure is justified.

You two are both stubborn, and PsyGuy is trolling.

And 'even you'? What the heck?

PsyGuy
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Post by PsyGuy »

@Illiane_Blues

The burden of proof lies with the one filing the suite, in this case its the IS. The IT has a better chance of winning than the IS, considering the pandemic situation we are in. Which is far more than your zero percent.
Yes the contract is nullified as completed upon declaration of FM, the parties exit the agreement without further obligation, it wouldnt be FM if the contract still remained in force, just as as if the situation was reversed and the IS declared FM. It would be up to either . to challenge the FM and validity of the nullification.

Illiane_Blues
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Re: Reply

Post by Illiane_Blues »

No, the school just sues for simple breach of contract.
As @Heliotrope says the teacher has to prove that Force Majeure applies to him.
Declaring Force Majeure does not mean anything until you have argued the legality of it and the contract isn't nullified until that has been proven by the teacher.
For what it's worth, teachers can also sue if the school declares Force Majeure, and then the school has to prove it applies.
And that zero percent chance is only if other teachers are still teaching.

PsyGuy
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Post by PsyGuy »

@Illiane_Blues

No, @Heliotrope is wrong, the IS can sue for breach, the IT declares FM, and then its up to the IS to prove the FM is invalid.
Declaring FM means FM unless one of the parties ants to challenge it in litigation. Parties dont need the approval of a court to declare FM.
No the condition of other ITs does not define the status of FM for any other IT, the contract isnt a labor bargaining agreement its between the IS and one IT. Different ITs will have different conditions that result in different scenarios.

Illiane_Blues
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Re: Reply

Post by Illiane_Blues »

No, that's not how it worked.
I wish it had been like that.

PsyGuy
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Post by PsyGuy »

@Illiane_Blues

How it works and how it works for you are not always the same thing.

Illiane_Blues
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Re: Reply

Post by Illiane_Blues »

As long as Force Majeure is merely the teacher telling his school that it's Force Majeure, the school can always sue for breach of contract and the teacher will always have to prove Force Majeure applies to him.

PsyGuy
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Post by PsyGuy »

@Illiane_Blues

Noted, but having stated as such Id already internalized it. An IT in HK last year claimed FM as a result of the protests and successfully exited their contract.
The iS can always sue for breach (just as the IT can), and in this case the IS will have to prove the FM is invalid.

Illiane_Blues
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Re: Reply

Post by Illiane_Blues »

As stated the burden of proof lies with the IT but we disagree about that then.

PsyGuy
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Post by PsyGuy »

@Illiane_Blues

The burden of proof is on the plaintiff, in this case the IS. Yes, we disagree.

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