Preamble
This text is a formulation on the procedural dimensions of the contemporary, which looks at the Force Majeure clause as a minor clause but elaborated into a superior force. The Force Majeure clause, in a transaction between employers and employees; contractors and contractees, becomes a dangerous supplement built into the intangible infrastructure of contracts.
Within the aesthetic regime produced by contracts, Force Majeure poses the limit to a contract's enunciations. This piece starts, therefore, with the contractual, by establishing the definition of two terms within which all formulations will be made: “Aesthetics” and “Contract.”
1. Aesthetics
Aesthetics will be defined as “how” something is carried out, formulated, and expressed. It is not about beauty, style, or design. It is the way something is communicated—officially, casually, formally, informally, cordially, rudely, violently, justly, robotically, humanely, mechanically, precisely, loudly… and so on. The “how” bears implications on determining the value of “what” is conveyed. It has the capacity to justify something as right or wrong. Aesthetics is not an outcome of artistic integrity, but “a way of working” that produces value. An object or action does not possess an aesthetic. It produces domains of aesthetic negotiations. Each domain comes with political implications. Aesthetics is a way of making sense of the political dimension of life. Aesthetics, or “how” we do something, can confer value to empathy and egalitarianism, or to resistance and change, or to violence and subordination. An aesthetics of monumentality, for instance, gives higher value to scale, glory, and timelessness over the exploitation and enslavement that go into achieving such works. A monument demands and celebrates the centralization and concentration of power and resources while producing a deprivation of power for others. A document and a monument have a lot in common that way. An aesthetics of process, on the other hand, gives value to transformation and continual change, producing a commons and collectivity. An aesthetics of process celebrates a decentralization of power and resources in favor of constant redistribution of agency. Aesthetics is the domain of such values and their implications.
2. Contract
Contract is not defined as a legal paraphernalia or an instrument of the state, but rather, as a site. You enter into a contract. It is the intangible scaffold created out of protocols that underlie and remain concealed within the architecture of formal labor. It is the intangible architecture that underlies all property. The domain of contracts is constituted by an aesthetics of legality. However, it is not the same as evidentiary aesthetics, nor as forensic aesthetics, which are figured post-factum. A contract is propositional and it is preemptive. Contracts are future-oriented technologies in which the future comes as threat and must be secured. The aesthetic domain within which contracts operate are constituted by the enunciation and enforcement of definitions. Every action, process, and outcome in a contract must be defined in terms of property and ownership. Contracts therefore draw the contours of speculation. They produce a contraction of life, the world, and all possibilities therein.
3. Force Majeure
“Superior Force”: Its provenance goes back to French law, wherein it signified an event or effect that cannot be reasonably anticipated or controlled. In legal contracts, “Superior Force” denotes uncontrollable events such as war, labor strikes, or natural disasters, which are not the fault of any party and make it impossible to carry out normal business. Companies insert a Force Majeure clause into a contract to absolve themselves from liability in the event that they cannot fulfill the terms of the contract, or if attempting to do so will result in the loss or damage of the goods and services offered. In the past two years of the pandemic, everyone has experienced the application of Force Majeure directly or indirectly. Only, in most contracts, many realized that a pandemic was never stated in the clause. So, Force Majeure had to be implied. Suddenly, someone was out of work with no due notice. An invitation got revoked. A contract got nullified. A delay was experienced. There was a sudden silence. An indefinite delay. No payment. A delay in payment. No job. No work. No notice. In all of these scenarios, someone somewhere in the supply chain pressed a Force Majeure button, causing a relay effect to come into motion. An impossibility to carry out business as usual.
OUT OF MY HANDS
Capitalism has always maintained a great fondness for the impossible. It reminds consumers that anything is possible. Just do it! Because you’re worth it! Maybe she’s born with it! Think Different. Adidas’ slogan shouts “Impossible is Nothing.” Walt Disney was known to have said, “It’s kind of fun to do the impossible.” Nietzsche, much earlier, understood this paradox when he said, “It is impossible to suffer without making someone pay for it; every complaint already contains revenge.” Capitalism takes its revenge when you ask for the impossible.
4. Execution and Executive Functionality (When to Apply Force Majeure):
4.1 Force Majeure is when the world becomes a third party.
Two parties enter into a contract where all terms outlined are between two parties and those two parties alone. A Force Majeure is thrown in just in case the world invades the contract as a third party. The application of Force Majeure is an announcement that the world has entered as a non-negotiable entity.
4.2 In contractual language, Force Majeure refers to the “act of God.”
In a contract, an act of God infers earthquakes, floods, tornadoes, and cyclones. The god referred to in the contract does not belong to any religion or belief, even though the contract invokes the wrath of a monotheistic God. This God is a very specific God. It did not always exist. Like all gods, it was made by men, mostly powerful men who owned ships, real-estate, and enslaved people. This God cares for you, provides for you, motivates you, watches you and everyone else from the firmament, guides you, and also tests you. Nothing is hidden from its view. It has its devotees, its theologians, and its scriptures. Like all gods, it demands to be worshipped, praised, and made burnt offerings before it rewards. Several Insurance companies often limit or exclude coverage for acts of God.
It is not clear whether it is this God’s actions that are invoked in a Force Majeure clause, or some other God’s. But we do know that the act of one god can be at odds with the will of another god. Several references to gods have been made by world leaders lately, mostly men taking oath or justifying war. On the streets, in a small office, in a queue, an uttered “InshaAllah” invokes another god, one that promises time.
4.3 Force Majeure is declared in silence.
No sirens go off; no announcements are made on the radio; no notifications are sent when a Force Majeure is declared. It is silent, because it tells you that the world has become too clamorous and loud while the contract is still composed and rational. In the 19th and 20th centuries, such declarations coming from a place of rationality and reason took the form of speech acts. These acts were acts of men. They pronounced a couple husband and wife, named ships, and declared certain women as hysterics. In the 21st century, they pronounced certain people as terrorists.
Force Majeure is not a speech act, it is not uttered or announced. But when it is invoked, it appears to the mind like a speech act, a silent one. It does not come as an attack because it keeps you waiting. An invitation turns into a disinvitation.
4.4 Force Majeure is not a state of exception.
Force Majeure is not a state of exception, nor is it permanent. It is an event. It is almost like canceling, except this time, it is the institution canceling you. How does the institution cancel you? It has a cancelation vibe about it—an institutional cancelation. These days, cancelations happen through anonymous Instagram posts, tweets, memes; they happen in the popular domain. Cancelations do not have terms and conditions.
4.5 Force Majeure conceals contingency as procedure.
A Force Majeure clause in a contract acts as though it is prepared for all contingencies by defining those contingencies. It classifies them into wars, strikes, natural calamities, and now, pandemics, building these contingencies into the procedures. Someone’s personal loss; someone’s difficult circumstances; a life-changing event, are not classified within the contingencies.
4.6 Non-contractual labor allows Force Majeure to be perpetually applicable
Non-contractual labor is not exempt from Force Majeure. It allows Force Majeure to be perpetually applicable. The contours of contingencies, acts of god, and superior forces to always be at work.
4.7 Valuation; Scarcity
Force Majeure produces closure of contingency. You can’t do anything about it. It’s not even a scarcity; it’s just blunt.
It possibly does something, but is not an erasure or reduction like scarcity. It is not even in the realm of action, in the sense that scarcity finally contributes back to a certain level of valuation. This does not create value. Force Majeure is not in that logic either.
It's about closing off contingency.
It's not even a scarcity. It's just blunt. It does something in the realm of the possibility, but not in terms of a scarcity that reduces or erases, or has any kind of action. This is not in the realm of action. This does not create value.
Force Majeure is not in that logic, either. So what does the Force Majeure do to a resource on those registers?
It can produce. It can produce a dis-invitation. As Force Majeure, it's not like the Force Majeure is hitting—the Force Majeure comes as a kind of justification. In fact, it's the anti-hitting. It's not the battering ram. It's a barricade. Everything else is a hit.
4.8 Kill fee
The term Hardship Posting is used by HR departments sending employees abroad. This is assigned to certain hostile environments as a latent, persistent Force Majeure countered by a bonus “hardship pay” allotted to those postings near war or aridity, or which are distant from whiteness.
So much art has happened without even a kill fee. A “kill fee” is supposed to compensate for the work’s nullification. But no fee can compensate for what has been canceled. It’s an incommensurability of values. It’s not possible to compensate. It will always be not enough. It’s not to say you should not have compensation. If there were adequate compensation, we would be billionaires.
4.9 Ultimate fantasy of the museological
There's an invitational Force Majeure. There's an aesthetic Force Majeure. There’s a supply chain Force Majeure. Force Majeure tries to put a grinding halt on everything, like when a whole machine comes to something that sounds like a grinding or crunching halt—a massive machinery and anyways, that's the museological project, right? To grind things to a halt, to grind things to a home. The museological project is to grind history to a halt, you know, and so Force Majeure is kind of the ultimate fantasy of a museum—the fantasy of the museological imagination.
4.10 Halt without a grind
Force Majeure is to put things to a grinding halt—to put the artifact into a grinding stasis. Grinding is the daily activity of the museological. Force Majeure does away with its pretense. There's not a spectrum of Force Majeure. It comes as a kind of blanket. It doesn't come with a shoreline. There's no gradual. It's not aggressive. It is invoked. It has a forward-neutering function—once it is invoked, it's very hard to get out of that.
4.11 Distributive
Distributing resource—how Force Majeure operates on distributive action. In the event of Force Majeure, the parts would do this and this to dispense of money or schedules or responsibilities. Obviously, if the contract is written with a certain aggression—with a certain antagonistic disposition—then it would be as though I'm imploring you; trying to defer as much of the responsibility as possible onto the signatory. As the one issuing the document, I would try to keep it away from me.
It's a distributive action—an innovation from securitization and barricade insulation. Insulation from the heat, from the tornado, from the distribution. But the provision of Force Majeure that you talked about is primarily to render everything null because there are termination clauses and cancelation clauses. All of those are built into the contract, and Force Majeure comes into play, rendering even those void.
5. Force Majeuring Force Majeure
In the event that the Force Majeure is not fulfilled as per the terms above due to Force Majeure, this shall not be regarded as a breach of an agreement or its terms, and the undersigned may agree to extend or cancel this agreement pursuant to articles 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, and 4.11 due to Force Majeure, such as natural disasters, war, epidemics (but not pandemics), accident in transportation (ship, plane, or train), general strikes, law, administrative disposition or other cause(s) such as stone throws, shoe throws, string changes, indefinite narrative deferrals, or other such events, incidents, or occurrences beyond the control of involved parties.
If Force Majeure is declared within the aesthetic domain of contractual thinking, then there is obviously a counter-aesthetics of Force Majeure. What happens if you declared Force Majeure to a Force Majeure clause?
An attack on Force Majeure. A battering ram to a barricade. Force Majeure as a barricade against war, flood, illness, against life. A barricade against the world.
Concurrent institutional denialism of the reality of the rest of the world is in such a state of abundance of forces acting simultaneously, in myriad forms, while, at the same time, a certain kind of acceptance—the institution does all that it does because of this state of abundance. There is an admittance of it—a production of allergy.
Force Majeure often appears at the very end, as an end clause, a boiler tail, a fine print. Right before the signatory page, right before the schedule.
A realm in which you cannot do anything about it: outside of the agency, like that which is inevitable.
There is a video of B.B. King in mid-performance, onstage at a festival in front of thousands of people. Sweat pours down the side of his face while he bends into the microphone, working his guitar. A string snaps loose, cutting a trembling wireline in the air—a fault in the diameter of a string undoes the work of an entire team of engineers, technicians, and riders. A hand holding a new string emerges as if on cue. King, undisturbed, proceeds to restring his guitar while playing and singing as if nothing even happened.
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