Force majeure (French: “greater force”) is a contractual clause and legal doctrine that can excuse or suspend a party’s performance when extraordinary events beyond that party’s control make performance impossible, illegal, or impracticable. The concept originates in civil law systems (Napoleonic tradition) and is widely used in international commercial contracts. In common‑law jurisdictions (United States, United Kingdom) force majeure clauses are enforceable but typically must be explicit about which events will trigger relief. (See: Investopedia; Cornell LII; ICC.)
Key Takeaways
– Force majeure is a contractual risk‑allocation tool that can remove or suspend liability when unforeseen, external, and unavoidable events prevent performance. (Investopedia)
– Whether an event qualifies depends on: the contract language, whether the event was unforeseeable, whether it was external to the parties, and whether it made performance impossible or commercially impracticable. (Investopedia; ICC)
– Jurisdictions treat force majeure differently: civil‑law systems often apply broader “unforeseeable, external, unavoidable” tests; common law emphasizes strict contractual wording. (Investopedia; Latham & Watkins)
– Courts are reluctant to excuse performance absent clear contractual language; parties should draft precise clauses and follow notice/mitigation requirements. (ICC; ABA)
Key Components of a Force Majeure Clause
A well‑drafted force majeure clause should address the following elements explicitly:
– Triggering events: list examples (natural disasters, war, terrorism, strikes, governmental actions, epidemics/pandemics, cyberattacks) and include catch‑alls where appropriate (e.g., “other causes beyond the reasonable control of the affected party”). Be specific for high‑risk contexts.
– Effects on performance: clarify whether the clause suspends obligations, extends time for performance, or allows termination if the disabling event continues beyond a stated period.
– Notice and timing: require prompt written notice of the event and its expected duration; specify timeframes and how notice must be given.
– Mitigation: require the affected party to use reasonable steps to avoid or mitigate the effect of the event and to resume performance as soon as practicable.
– Allocation of costs: state who bears increased costs, storage, or re‑routing expenses during suspension.
– Allocation of risk and remedies: define whether relief is a suspension, extension, or grounds for termination, and whether damages are excluded.
– Governing law, waiver, and dispute resolution: specify applicable law and processes for resolving disputes. (ICC; ABA)
How to Invoke a Force Majeure Clause — Practical Steps
1. Review the contract immediately
• Identify the exact wording of the force majeure clause and any related obligations (notice, documentation, mitigation).
2. Confirm that the event fits the clause
• Map the factual event (e.g., government shutdown, flood, pandemic restriction) against the clause’s listed events and any catch‑all language.
3. Assess legal standards in the governing jurisdiction
• Determine whether the jurisdiction applies broad doctrines (e.g., French “unforeseeable, external, unavoidable”) or strict common‑law interpretations that require explicit listing of events. (Latham & Watkins; Cornell LII)
4. Provide timely written notice
• Send the notice required by the contract, describing the event, how it impacts performance, expected duration, and actions being taken to mitigate. Keep proof of delivery.
5. Collect and preserve evidence
• Document the event and its impact: government orders, official closures, vendor communications, photos, financial records, and contemporaneous internal notes showing inability to perform.
6. Mitigate and attempt alternate performance
• Take reasonable steps to avoid or reduce the disruption (find alternative suppliers, reroute deliveries, implement remote work) and document those efforts.
7. Communicate and negotiate with the counterparty
• Discuss alternatives (temporary suspension, partial performance, amended deadlines, price adjustments) to avoid litigation.
8. Engage legal counsel early
• Counsel can evaluate the chance of success, help craft notice, advise on insurance claims, and, if necessary, litigate or arbitrate. (ICC; ABA)
Understanding the Conflict: Force Majeure vs. Pacta Sunt Servanda
Pacta sunt servanda (“agreements must be kept”) is a fundamental legal principle requiring parties to honor contracts. Force majeure is essentially an exception: it allows non‑performance where extraordinary events make performance impossible or impracticable. Because courts favor upholding contracts, invoking force majeure is difficult without clear contract language and persuasive proof that the event was unforeseeable and rendered performance impossible or impracticable. (AJIL; Investopedia)
Warning: Common Pitfalls
– Vague clauses: overly general language or failure to name relevant risks (e.g., “epidemic”) may allow courts to refuse relief.
– Failure to give required notice: missing contractual notice deadlines can forfeit the defense.
– Lack of mitigation: courts expect reasonable efforts to avoid or reduce harm; doing nothing weakens the claim.
– Foreseeability: repeated or foreseeable events (e.g., seasonal storms in a hurricane zone) may not qualify.
– Insurance overlap: insurers and counterparties may dispute coverage or liability—coordinate claims and legal positions. (ICC; ABA)
Is Force Majeure Always Recognized and Upheld?
No. Recognition and enforcement depend on:
– Contract language: precise drafting increases enforceability, especially in common‑law jurisdictions.
– Jurisdictional doctrine: civil law courts may apply broad tests (unforeseeable, external, unavoidable); common law courts look to the precise wording and are less likely to imply relief. (Latham & Watkins; Cornell LII)
– Facts and proof: burden is on the party claiming force majeure to show the event fits the clause and made performance impossible or impracticable. The International Chamber of Commerce suggests a test of “impracticability” (unreasonably burdensome or impossible). (ICC)
– Public policy and statutory rules: some statutory regimes or public interest considerations may limit reliance on force majeure.
What Are Examples of Force Majeure?
Typical listed events:
– Natural disasters: earthquakes, floods, hurricanes, avalanches (but foreseeability matters in certain locales).
– War, invasion, hostilities, civil commotion, terrorism.
– Governmental actions: embargoes, quarantines, sudden travel bans, emergency laws.
– Labor disputes: strikes or lockouts that cut off critical supply.
– Epidemics/pandemics: but only if explicitly included or otherwise shown to be covered.
– Major cyberattacks or infrastructure failures (if included).
Real‑world illustration: an avalanche destroying a supplier’s factory might qualify in a civil‑law jurisdiction under the “unforeseeable, external, unavoidable” tests—unless the contract explicitly excluded or included that particular event. (Investopedia)
Does a Pandemic Like COVID‑19 Qualify for Force Majeure?
It depends:
– Some contracts expressly include “pandemic,” “epidemic,” “quarantine,” or “governmental action” and so covered events will more likely qualify.
– Where clauses do not mention pandemics, courts look at whether COVID‑19 and related government restrictions made performance impossible or merely more difficult or costly.
– Case outcomes have varied. Investopedia summarizes decisions where courts refused to excuse performance because the clause applied only to property damage or specified other types of catastrophes (e.g., the Regal Cinemas lease in Virginia) or because closures were due to the pandemic rather than another qualifying catastrophe (University of Vermont ruling). Those rulings show that lacking explicit pandemic language or broader catch‑alls can doom a force majeure defense. (Investopedia; ABA)
– The ICC’s guidance (March 2020) and subsequent legal commentary emphasize that each case turns on contract wording, the factual link between the pandemic and non‑performance, mitigation steps, and governing law. (ICC; ABA)
Drafting and Risk‑Management Practical Steps (for Counsel and Contract Managers)
1. Identify local risks and tailor the clause
• For international contracts, build a bespoke clause that names country‑ or sector‑specific risks (e.g., hurricanes in the Caribbean, supply chain fragility, export controls).
2. Be explicit about pandemics and cyber risks
• If you want pandemic relief, name “pandemic,” “epidemic,” “quarantine,” or “public health emergency.” For modern concerns, include “cyberattack,” “denial of service,” and related events as needed.
3. Define consequences clearly
• State whether the clause provides for suspension, time extension, renegotiation, or termination (and under what timeframes).
4. Include strict notice and documentation rules
• Require prompt written notice, specify what evidence is needed, and set timelines for cure or termination.
5. Require mitigation and substitution
• Oblige parties to take reasonable steps to mitigate effects and seek alternative means of performance.
6. Link to insurance and force majeure exclusion
• Clarify interplay with insurance proceeds and whether insurance reduces or supplements relief.
7. Consider tailored remedies for prolonged disruption
• Include step‑down remedies (temporary relief followed by termination rights if an event persists beyond a specified period).
8. Choose governing law thoughtfully
• Governing law often determines interpretive rules; choose a jurisdiction aligned with your bargaining position.
9. Test templates regularly
• Refresh standard contract templates after major events (e.g., post‑COVID updates) and train contracting staff on changes.
Sample (Illustrative) Clause Language
Note: do not use without legal review. Example elements:
– “Force Majeure means an event or circumstance beyond the reasonable control of the affected party, including, without limitation, acts of God, flood, fire, earthquake, epidemic, pandemic, quarantine, act of war, governmental action, labor disputes, and cyberattack, which prevents, hinders, or delays performance.”
– “The affected party shall give notice within [X] days, use reasonable efforts to mitigate, and shall be excused from performance to the extent and for the duration of such prevention. If the event continues for more than [Y] days, either party may elect to terminate without liability.”
The Bottom Line
Force majeure is a critical contractual tool to allocate risk for extraordinary, unforeseen events. Its effectiveness depends heavily on the clause’s wording, the evidence of impact, the party’s mitigation efforts, and the governing law. After major global events such as COVID‑19, careful drafting (explicitly naming pandemics and related government actions) and strict adherence to notice and mitigation requirements are essential. Always involve counsel in drafting and invoking force majeure to align contractual protections with local law and commercial realities. (Investopedia; ICC; ABA; Latham & Watkins)
Sources and Further Reading
– Investopedia. “Force Majeure.”
– Cornell Law School, Legal Information Institute. “Force Majeure.”
– International Chamber of Commerce. “ICC Force Majeure and Hardship Clauses: March 2020.” /
– Latham & Watkins. “Impact of COVID‑19 on French Law Governed Contracts: Update.” (summary commentary)
– American Bar Association. “Force Majeure Clauses in the Aftermath of the Covid‑19 Pandemic and the Implications for Government Entities.” (practice guidance)
– American Journal of International Law (via JSTOR). “The Principle Pacta Sunt Servanda and the Nature of Obligation Under International Law.”
– Draft a sample force majeure clause tailored to a specific industry or jurisdiction;
– Create a checklist you can use when a disruptive event occurs; or
– Summarize recent court decisions in your jurisdiction about COVID‑19 and force majeure. Which would help most?