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Was it a force majeure case?

Nov 03,2018 - Last updated at Nov 03,2018

The tragedy of ten days ago when 21 people, most of whom young students on a school field trip, were swept to their death and scores of others were injured in flashfloods in the Dead Sea area, continues to haunt many in search for explanations, excuses or incriminations, depending on one's perspective.

Jurists would have an entirely different point of view simply because some of them may regard the tragedy as perhaps a "force majeure" case. The "force majeure" doctrine emanates from the Napoleonic Code that absolves a contractor from responsibility because of the interference of an occurrence, an event or a circumstance beyond his control that cannot be evaded by the exercise of due care. If it could be agreed that the factor or element that was the direct cause of the tragedy was the flashfloods that occurred on the day of the catastrophe, then lawyers may want to identify the intervening factors and judge whether they could have been evaded or not, in order to make or fail to make out a force majeure case. 

Flashfloods, just as tsunamis and other weather catastrophes, by themselves cannot be humanly avoided when they occur, as far as man can tell, unless one wants to argue that global warming is the root cause of such bizarre weather conditions and, therefore, could have been avoided. Yet, we cannot in the case of the tragedy in question go that far, and must confine ourselves to assessing the legal responsibility on indisputable facts.

Against this backdrop, while one can reasonably argue that the flashfloods per se which were the direct cause of the tragedy could not have been avoided, one can argue that the consequences of the flashfloods on human life could indeed have been evaded with the exercise of due diligence and care. In other words, if the actors involved in the making of the tragedy had taken due precautions or exercised reasonable judgement, the tragedy could have been prevented.

The necessary conclusion, therefore, is that the tragedy is not a force majeure case by any reasonable legal account. What remains is to identify the participants in the making of the tragedy but this is another issue altogether. The identification of the culprits is an issue of fact and an issue of law. The probe that the authorities are undertaking should be able to do just that.

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