A force majeure clause excuses a party from performing a contract when an extraordinary event outside its control makes performance impossible or impracticable. Useful force majeure clause examples show the same basic architecture: a definition of qualifying events, a standard describing how those events must affect performance, a notice requirement, a duty to mitigate, and a termination trigger if the disruption drags on. The wording of each element is what decides whether the clause protects you when something actually goes wrong.
A Sample Clause, Broken Down
Here is a representative provision of the kind that appears in commercial agreements:
“A Party shall not be in breach of this Agreement if and to the extent it is delayed in or prevented from performing its obligations by any act of God, fire, flood, earthquake, epidemic, war, invasion, insurrection, riot, act of terrorism, government order, embargo, labor disturbance, or any other cause beyond such Party’s reasonable control, provided that the Affected Party uses reasonable diligence to overcome the condition preventing performance, notifies the other Party in writing as soon as reasonably practicable, and resumes full performance once the condition is removed. If the event continues for more than 90 days from the date of notification, the non-affected Party may terminate this Agreement.”
Every phrase in that clause is doing work. The listed events tell a court exactly what qualifies. “Delayed in or prevented from performing” fixes the threshold the affected party must meet. “Reasonable diligence” blocks a party from simply declaring force majeure and walking away. The written-notice requirement gives the other side time to react. The 90-day window prevents the deal from sitting in limbo forever. Change any of those elements and the clause does something different, which is why the specific language matters far more than the fact that a clause exists at all.
The Threshold Verb Decides Almost Everything
The verb your clause uses to describe the required impact on performance sets the bar for relief. This is where most force majeure disputes are won or lost.
- “Prevents” performance. The highest bar. Performance must be physically or legally impossible. More expensive, more difficult, or less profitable will not qualify. Most standard clauses use this word.
- “Hinders” or “impedes” performance. A lower threshold. The event must create real and substantial problems, but full impossibility is not required. “Impaired” and “interfered with” typically read the same way.
- “Delays” performance. Given its plain meaning. The event must actually cause a delay, but need not make performance impossible.
A supplier whose raw material costs tripled after an embargo will likely fail under a “prevents” clause because the supplier could still technically buy the materials. Under a “hinders” clause the same supplier has a stronger argument. If you are negotiating, the choice between “prevents” and “hinders” deserves real attention.
Which Events to List
Courts read force majeure clauses narrowly. If an event is not specifically listed, a court will likely refuse to treat it as a qualifying trigger, even if the event was clearly extraordinary. Some jurisdictions, including New York, only grant relief when the precise event appears in the clause language.1Legal Information Institute. Force Majeure
The ICC Force Majeure Clause, widely used as a model, groups qualifying events into seven categories. These are presumed to satisfy the “beyond control” and “unforeseeability” requirements, leaving the affected party to prove only that the effects could not be overcome:2International Chamber of Commerce. ICC Force Majeure and Hardship Clauses
- Natural disasters. Earthquakes, floods, hurricanes, wildfires, volcanic eruptions, and extreme weather. Contracts often label these “acts of God.”
- Armed conflict. War (declared or not), invasion, military mobilization, civil war, rebellion, and insurrection.
- Civil unrest and terrorism. Riots, acts of terrorism, sabotage, and piracy.
- Government action. Embargoes, sanctions, trade restrictions, seizure of property, regulatory orders, and compliance requirements imposed after the contract was signed.
- Epidemics and pandemics. Plague, epidemic, and large-scale public health emergencies that restrict movement or labor availability.
- Infrastructure failure. Explosions, fires, and prolonged breakdown of transportation, telecommunications, information systems, or energy supply.
- Labor disruptions. Strikes, lockouts, boycotts, go-slows, and factory occupations.
Your clause does not have to follow the ICC format, but the specificity principle still applies. A clause that says “natural disasters” without listing types leaves room for a court to question whether, say, a drought qualifies. When in doubt, name it.
Catch-All Language and Its Limits
Most clauses close the event list with a catch-all: “or any other events beyond the parties’ reasonable control.” Courts apply a doctrine called ejusdem generis, which limits that catch-all to events of the same general type as the ones specifically listed. If your clause lists natural disasters and wars but not government orders, a catch-all probably will not save you when a regulatory shutdown stops your operations. Careful drafters address this by adding “whether similar or dissimilar to any of the foregoing,” though even that phrasing is not guaranteed to work in every jurisdiction.
Cyberattacks and Other Modern Additions
Ransomware and IT infrastructure failures are increasingly showing up in force majeure clauses. A cyberattack that shuts down a logistics company’s systems can disrupt performance just as badly as a flood destroying a warehouse. Current drafting guidance recommends naming cyberattacks, ransomware, and third-party attacks on cloud-based systems explicitly, rather than hoping a court will read them into a general “infrastructure failure” category. Contracts drafted before roughly 2018 often do not mention cyber events at all, and courts will not stretch existing language to cover risks the parties could have addressed but didn’t.
What the Affected Party Must Prove
The party claiming force majeure carries the entire burden. You must demonstrate that a qualifying event occurred, that it directly caused your inability to perform, and that you tried to perform despite the disruption.1Legal Information Institute. Force Majeure
The ICC clause sets out the three-part test that reflects the standard most courts apply:2International Chamber of Commerce. ICC Force Majeure and Hardship Clauses
- Beyond reasonable control. Neither party could have controlled the event. Internal problems like poor management, cash-flow issues, or failure to maintain equipment do not qualify.
- Unforeseeable at the time of contracting. The parties could not reasonably have anticipated the event when they signed. Courts expect sophisticated parties to have anticipated ordinary market volatility.
- Effects could not be avoided or overcome. Even after the event occurred, the affected party could not have worked around it through reasonable effort.
That third element trips up more claims than the other two combined. Courts expect the affected party to show genuine effort to find workarounds before declaring performance impossible.
Notice
Nearly every force majeure clause requires written notice within a specified window after the event begins, typically a few days to two weeks. The notice usually must describe the event, identify the obligations affected, and estimate how long the disruption will last. Missing the notice deadline can waive your right to claim force majeure entirely, regardless of how legitimate the underlying event was. This is one of the most common and most avoidable ways to lose a claim.
Mitigation
You cannot declare force majeure and stop working. Courts require the affected party to take reasonable steps to work around the disruption and minimize losses. One court found that a shipping company could not rely on force majeure because it failed to search for substitute vessels when its named ships became unavailable. Another held that allocating scarce resources only to contracts with favorable pricing, while declaring force majeure on less profitable ones, was not reasonable mitigation. The pattern across cases: courts expect genuine, balanced effort to keep performing. You are not required to take steps that would put your commercial reputation at risk or violate other contractual obligations, but you are required to look.
What Courts Will Not Accept
Increased cost is not the same as impossibility. Courts consistently refuse to recognize economic downturns, price spikes, or a party’s financial inability to perform as force majeure events. Market conditions fluctuate regularly, and sophisticated parties are expected to address that risk through pricing terms, hedging, or other contract provisions.1Legal Information Institute. Force Majeure
Even a clause that uses “hinders” rather than “prevents” will not help. Changes in economic circumstances that affect the profitability of a contract, without more, do not meet even the lower hindrance threshold. If your supplier’s prices doubled and performing would wipe out your margin, that is a business problem. Force majeure addresses impossibility, not unprofitability.
Suspension, Termination, and Partial Performance
A working clause tells the parties what happens once a qualifying event hits. Suspension pauses the affected party’s obligations for the duration of the disruption. If a flood delays a construction project by 30 days, the completion deadline shifts by 30 days. The contract remains alive, and both parties resume performance once the event ends. Suspension only excuses the obligations directly affected. If you can still perform some of your duties, you are expected to.
Termination becomes available when the disruption drags on. The ICC model clause sets a default threshold of 120 days, after which either party may terminate by giving reasonable notice.2International Chamber of Commerce. ICC Force Majeure and Hardship Clauses Individual contracts often use 30, 60, or 90 days. Termination under a force majeure clause releases the parties without the breach-of-contract penalties that would otherwise apply. That protects the affected party from damages and gives the other party a way out of a dead deal.
Partial Performance and Allocation
When a force majeure event reduces your capacity without eliminating it entirely, you face an allocation problem. If a factory fire destroys half your production line, you can still supply some customers but not all of them. The UCC addresses this directly: a seller whose capacity is only partially affected must allocate remaining production among customers in a fair and reasonable manner, and may include regular customers not under contract as well as its own manufacturing needs.3Legal Information Institute. Uniform Commercial Code 2-615 – Excuse by Failure of Presupposed Conditions The seller must also promptly notify each buyer about the delay and the estimated share available. Cherry-picking which contracts to honor based on profitability is not a defensible method. Pro rata distribution, chronological order, or another approach a reasonable person in the trade would consider fair is.
Lessons From the COVID Rulings
The pandemic produced a wave of force majeure litigation, and the results turned on specific drafting choices.
Courts accepted COVID-19 as a force majeure event when government orders directly prohibited a party from performing. A federal bankruptcy court in Illinois held that the governor’s executive order shutting down on-premises dining was the direct cause of a restaurant tenant’s inability to generate revenue, triggering the lease’s force majeure clause. A federal court in New York dismissed a breach of contract action after finding that the pandemic was a natural disaster within the clause’s scope.
Courts rejected force majeure claims where the clause carved out payment obligations, or where the pandemic made performance harder rather than impossible. A Texas bankruptcy court refused to excuse a tenant from paying rent because the lease specifically excluded “inability to pay” from the definition of force majeure. A Pennsylvania court reached the same result because the lease stated that force majeure events do not excuse rent payments.
The common thread: the contract’s specific language controlled. Courts did not ask whether the pandemic was terrible. They asked whether the clause covered it and whether the disruption matched the threshold word. Drafters who listed “pandemic” or “government order” and avoided carve-outs for payment obligations fared far better than those relying on vague catch-all language.
Related Tools Worth Knowing About
Force majeure is not the only clause that addresses disruption, and it is not a substitute for the others.
A hardship clause addresses situations where performance is still possible but has become so much more burdensome that the economic balance of the deal is fundamentally upset. Force majeure leads to suspension or termination. Hardship leads to renegotiation.2International Chamber of Commerce. ICC Force Majeure and Hardship Clauses If a tariff triples the cost of imported materials, performance is not impossible, but the original deal may be ruinous at the new price. Without a hardship clause, you sit in a gap: performance is technically possible, force majeure does not apply, and you have no lever. Many contracts include both.
If your contract has no force majeure clause at all, common-law backups exist but sit at a high bar. UCC Section 2-615 allows a seller of goods to be excused when an unforeseen event makes performance commercially impracticable, provided the non-occurrence of that event was a basic assumption of the contract and the seller was not at fault.3Legal Information Institute. Uniform Commercial Code 2-615 – Excuse by Failure of Presupposed Conditions Frustration of purpose applies when performance is still possible but an unforeseen event has destroyed the entire reason you entered the contract; courts apply it sparingly and only when the frustrated purpose was so fundamental that the parties would never have made the deal without it.4Legal Information Institute. Frustration of Purpose
Business interruption insurance is a different animal entirely. A force majeure clause decides whether your obligations are suspended or excused. It does not compensate you for losses. Business interruption insurance covers income you lose when operations are disrupted, but standard policies have historically required physical damage to property as a trigger. Some modern policies have expanded to include supply chain disruptions, cyber incidents, and public health emergencies, but coverage varies and exclusions are easy to miss. Review the clause and the policy side by side. Gaps between the two are common, and they are expensive.