Thursday, October 30, 2008

Excusable

I just received a Service Agreement Contract from an US research institution. Under point 19, it explains

    19. Excusable Delays

    [The Institution] will be excused from performance hereunder if a delay is caused by inclement weather, fire, flood, strike, or other labor dispute, acts of God, acts of governmental officials or agencies, terrorism, or any other cause beyond the control of [the Institution].

10 comments:

Andrei Kirilyuk said...

Yes, indeed, with Gods governing this planet, you never know... So they excuse themselves, to be sure... In other words, problems are guaranteed. Therefore, sign the contract and grab the cash. Gods like it. On this planet.

Bee said...

Actually, I am the one who has to hand out the cash.

Anonymous said...

Finally ... something on a physics site that I, a lawyer, can actually understand.

This is a common if not universal clause in American contracts. It is called a force majeure clause.

Common examples of acts of god would be floods, earthquakes, hurricanes and, presumably, randomly appearing black holes. This may be news to you, but keep in mind that law is a more ancient human discipline than physics. Almost as old as prostitution.

Glenn MacGrady

Bee said...

Hi Glenn,

That is quite interesting. It just makes me wonder who gets to decide what was an act of God and what wasn't? Given that causes 'beyond control' where already mentioned, why is it necessary to bring a god into the game? I understand the historical reason, but wouldn't one think this should be removed at some point? Best,

B.

Anonymous said...

Hi B,

Now I know you're not REALLY interested, but since I had such an enjoyable time this week reading your blog's Garrett Lisi discussions and links, I'll answer what is a very good and practical question:

"who gets to decide what was an act of God and what wasn't?"

A court, via litigation, if there is a dispute over whether the force majeure clause applies.

The purpose of the clause is to legally excuse a party to the contract from performing its side of the bargain due to extraordinary causes beyond its control (for which "acts of god" and "force majeure" are semantic metaphors in Anglo-American and French jurisprudence).

For example, suppose the institution is a school to which you have paid money to take a course in LQG, and there is a force majeure clause in the contract between you and the school. The professor's union goes on strike for higher wages during the first week of class. Professor Smolin decides to honor the strike and doesn't teach the class. By the time the strike ends, it's too late for the course to continue.

You are ticked off and want your money back, arguing that the school did not perform its contractual duty. The school argues that the force majeure clause excuses the lack of performance because the teacher strike was an act of god.

You now have to go to court and argue that the failure to teach the course was not an act of god, but rather was an act of Smolin ... and that Smolin is not god.

See how complex the universe can become!

Who decides? A judge. If you are in America, your fate may depend upon whether the judge was appointed by John McCain or Barack Obama ... because judges don't decide things based on objective algorithms.

As a matter of historical fact, the issue of whether a labor strike constitutes an "act of god" under a force majeure clause has been litigated many times in US courts. The answer has been generally: yes.

Don't worry about it (not that you were). It's a standard clause -- called a "boilerplate" -- which won't be negotiable.

I hope you find a good next position, and thanks for taking the time to blog. A teacher never knows where her influence stops, and hence can affect eternity.

Glenn MacGrady

Andrei Kirilyuk said...

Bee said: "Actually, I am the one who has to hand out the cash."

Then you are approaching the properties of divinity. One can predict emergence of a local cult, for the project duration. What could that mysterious project be, however...

Andrei Kirilyuk said...

Glenn's professional explanations here made me think about excusable - or rather inexcusable - situation in today's (official) science, where in some (or even all) of its fundamental fields we have no essential results for decades, while problems remain and even accumulate at a catastrophically growing rate, in parallel to ever growing public (and private) investment just in that official science (at least in "developed" countries). Doesn't it create a "conflict" situation, which is much stronger than some missing education courses and where the entire humanity is absolutely, persistently missing the results it continues to generously pay for? And then in the absence of any "excusable" causes for such stable failure, couldn't the cheated public pursue those absolutely fruitless "professionals" and ask for a compensation of its vainly used, practically abused, resources and confidence?

In any case, formally or informally, it is not excusable any more to have such low, practically negative efficiency of scientific activity. Beware scientist, the last judgement approaches. To be truly successful, science and jurisprudence should be dominated by professionals that cannot excuse themselves, just don't have that "convenient" habit. Unfortunately, it's rather the opposite that actually happens, at least in science: its official priests cannot solve the accumulating, often critically important problems (the main task they are paid for), but they are so skilful in their justification of this failure and its transformation into further, yet more illusive promises (cf. today's growing "multiverse" farce, i.e. a purely imaginary "outside reality", from where everything can come, every missing explanation, just like in any religious doctrine which, however, openly announces it from the beginning). Even worse, the official science clergy ruthlessly suppresses any occasionally emerging (professional) problem solution, without any logical, scientific explanation. After which the same community very passionately accuses "politicians" or "capitalists" of evidently much less severe violation of their "contract with society" and of "passively observing" an approaching destructive crisis... What can be excusable here and what is the name of this “natural disaster”?

Bee said...

Hi Glenn,

Why not? I've always found laws as rules that govern actions interesting.

I think what you are saying is basically 'act of God' is a placeholder that has a specific meaning for a lawyer. I am just wondering though is it necessary to bring a God in the game? Take the example that you offer. Strikes are already explicitly mentioned as excusable delays. So are the floods you mentioned earlier. So is any other case beyond the control of the institution. That makes me wonder what could an act of God possibly be that is not already covered by this anyway?

No, I wasn't worried about that clause, I don't think there is anything wrong with that contract, I just found it funny.

Best,

B.

PS: You don't have to comment as anonymous. Chose option Name/URL, it will open a box where you can enter a name. You don't have to enter an URL.

Andrei Kirilyuk said...

Bee said: “So is any other case beyond the control of the institution. That makes me wonder what could an act of God possibly be that is not already covered by this anyway?”

“God” here may serve as a unified designation for “truly unknown”, “very poorly understood” and therefore “really unpredictable”, contrary to “not complete known” but still partially predictable and therefore not totally “excusable”. So “God” is rather logical here and, in addition, it is a unified concept, while each enumeration of particular “excusable” reasons will be incomplete. There is also a philosophical implication: what is the difference indeed between “truly unknown/inexplicable” (e.g. “multiverse”) and “God”? Properties of both are quite similar, with the only difference that one may hope that “unknown” but objective reality can one day become known and then any “divine” flavour around it will disappear. But until then conventional quantum mechanics, for example, is absolutely divine, with its inexplicable mysteries (fixed as such!). Love God or ... propose your scientific solution to a problem!

It's the same when you say “I am just wondering though is it necessary to bring a God in the game?” (that sounds funny: the destiny of divinity is “decided”, to bring it in or let it down, out there...) No, it's not necessary if you can get rid of the unknown, at least its “glaring” parts, all those postulated “mysteries” and “mathematical realities”. If you can, then you don't need God, no one other than You! But if you can't, then you do need one, whatever is your preferred version of His many names, Krishna, “multiverse”, “quantum mysteries”, “mathematical reality”, or ... any other math-physical “gibberish” discussed in a recent post here and playing a role quite similar to any other avatars of the great and mysterious Vishnu. Let God, sorry, mathematical reality save you!

Glenn MacGrady said...

I agree that "act of god" can be seen as anachronistic, ambiguous, ante-modern and unhip.

I will propose at the next meeting of the ABA that the universal force majeure clause be rephrased to read:

"[The Institution] will be excused from performance hereunder if a delay is caused by events not predictable by M-Theory or any other cause beyond the control of [the Institution]."

This should add increased modernism and precision.

It should also open up a lucrative sideline for theoretical physicists as expert witnesses in contract litigation, who can make $500 to $1000 per hour for their services.