A force majeure clause is a contract provision that excuses one or both parties from performing when an extraordinary event outside their control makes performance impossible or impracticable. It only works if it’s written into the agreement, it only covers the events the text actually describes, and it only helps a party who follows the notice and mitigation steps the clause spells out. Everything else about invoking one flows from those three facts.
The Clause Has No Effect Unless the Contract Contains It
U.S. common law gives no automatic right to force majeure relief. If the agreement doesn’t include the clause, neither side can claim its protections when disaster strikes. That makes it different from a handful of common-law doctrines a court can apply on its own, and it means the scope of any relief is limited to whatever the written text says.
Courts look at the four corners of the agreement and enforce what was negotiated. A party who assumed force majeure was a built-in legal backstop has no shield when a hurricane shuts down their supply chain. If a particular event isn’t covered by the clause’s language, it doesn’t matter how catastrophic it was.
Events That Typically Trigger the Clause
Most clauses use a two-part structure: a specific list of named events followed by broader catch-all language. The named events usually fall into two categories.
- Natural events such as earthquakes, floods, fires, hurricanes, and volcanic eruptions, sometimes labeled “acts of God.”
- Human-caused or political events such as war, terrorism, riots, labor strikes, trade embargoes, government shutdowns, sanctions, and regulatory changes that directly block performance.
When an event appears on the specific list, the path to relief is relatively clean. The harder fights happen over catch-all phrases like “any other event beyond the reasonable control of the parties.” Courts read those broadly worded provisions narrowly, often applying a principle called ejusdem generis: the general language only covers events of the same kind or class as the ones specifically listed. A clause listing natural disasters and wars, then adding a catch-all, probably won’t stretch to cover a cyberattack or a market downturn unless the affected party can show the event belongs in the same category.
Foreseeability
A force majeure event must generally have been unforeseeable when the contract was signed. If both parties knew about a looming risk and signed the agreement anyway, they can’t later claim that risk blindsided them. A contract executed after a pandemic was already spreading, for instance, would face serious skepticism if a party tried to invoke force majeure based on that same pandemic.
COVID-19 shifted this analysis permanently. Before 2020, few commercial contracts explicitly listed pandemics or epidemics. Contracts negotiated after early 2020 that fail to address pandemics face a steep uphill battle claiming any future outbreak was unforeseeable. Many modern agreements now list “pandemic,” “epidemic,” or “public health emergency” alongside traditional triggers.
What Doesn’t Qualify
This is where most claims fall apart. A force majeure event must do more than make performance inconvenient, expensive, or unprofitable. Courts have consistently held that financial hardship alone does not excuse performance, even when costs spike dramatically due to tariffs, supply shortages, or commodity price swings. The event has to actually prevent or block performance, not just raise its price tag.
Routine or seasonal conditions rarely qualify either. A snowstorm in January is foreseeable in most of the country. A construction delay caused by ordinary summer heat doesn’t meet the bar. Predictable weather, normal business cycles, currency fluctuations, and shifts in market demand all fall outside the scope of a typical clause.
A party’s own financial problems never qualify. Bankruptcy, cash flow issues, inability to secure financing, or a customer walking away from a deal are business risks the parties are expected to manage. Force majeure is reserved for external events no amount of good management could have prevented.
How to Invoke the Clause
When a qualifying event occurs, you can’t simply stop performing and hope for the best. Most clauses impose procedural conditions you must satisfy before any relief kicks in.
Prove Causation
The party claiming force majeure bears the burden of showing the event directly caused the inability to perform. A general connection isn’t enough. If a government order shuts down restaurants in one city but your contract involves delivering goods to a warehouse in another city, the shutdown doesn’t automatically excuse your delivery obligation. The causal chain between the event and the specific contractual duty has to be tight and demonstrable.
Mitigate
Nearly every well-drafted clause requires the affected party to take reasonable steps to work around the disruption before claiming relief. Mitigation might mean sourcing materials from an alternative supplier, rerouting shipments, or finding a substitute venue. A party that stops performing without exploring commercially reasonable alternatives will almost certainly lose the claim. Courts and arbitrators look for genuine effort, not perfection, but they have little patience for parties who gave up without trying.
Give Proper Notice
The notice requirement is a procedural trap that catches an alarming number of claimants. Force majeure clauses typically specify who must receive the notice, the format it must take, and a deadline measured from the triggering event. Some contracts require notice within a specific number of days; others demand it before the next scheduled performance date. The notice often must explain the nature of the event, how it affects performance, and the expected duration of the disruption. Miss any of these, and an otherwise valid claim can collapse regardless of how severe the underlying event was.
What Happens After a Successful Invocation
The consequences of a valid claim are dictated by the clause itself, not by any default legal rule. Most clauses provide for a staged response that begins with suspension and may escalate to termination.
Suspension
The most common immediate outcome is a temporary pause. The affected party’s obligations are suspended for the duration of the event, and both sides wait for conditions to normalize. Many clauses cap this suspension period at a defined number of days. During suspension, the non-affected party typically cannot sue for breach or seek damages related to the delayed performance.
Termination
If the event drags on beyond the suspension window, the clause usually grants one or both parties the right to terminate. Termination discharges both sides from future obligations without liability for breach. The trigger might be a fixed period (such as 90 or 180 days of continuous disruption), the inability to perform a key obligation by a specific date, or an aggregate number of disrupted days over the contract’s life.
Who Absorbs Sunk Costs
The thorniest question in any termination is who eats the money already spent. Unless the clause explicitly addresses financial recovery, the general rule is that each party bears its own pre-suspension costs. Deposits, progress payments, and expenses incurred before the event are not automatically refundable. Sophisticated agreements sometimes include provisions for prorated reimbursement or return of advance payments, but those protections have to be negotiated in advance. Expecting a court to reallocate costs without contractual language supporting it is a losing strategy.
When the Contract Has No Force Majeure Clause
If your agreement doesn’t include the clause, or the clause doesn’t cover the event, three common-law doctrines can sometimes excuse performance. All three are significantly harder to prove than a contractual clause, and courts grant relief under them sparingly.
Impossibility
Impossibility applies when performance becomes objectively impossible, not just difficult or expensive. The classic scenario involves destruction of the specific subject matter of the contract: a venue burns down before a scheduled event, or a unique piece of equipment is destroyed. The impossibility must be genuine and total. If any reasonable method of performance remains available, the doctrine doesn’t apply.
Impracticability
Impracticability sets a somewhat lower bar than literal impossibility but remains demanding. Performance is excused when an unexpected event makes it unreasonably difficult or expensive, provided the non-occurrence of that event was a basic assumption underlying the contract. For contracts involving the sale of goods, UCC Section 2-615 codifies this standard: a seller’s delay or non-delivery is not a breach if performance was made impracticable by an unforeseen contingency or by compliance with a government regulation, even one that later proves invalid.
Frustration of Purpose
Frustration of purpose is the oddest of the three because performance remains entirely possible. The problem is that an unforeseen event destroyed the fundamental reason one party entered the contract. For the doctrine to apply, the frustrated purpose must have been so central to the contract that both parties understood it as the foundation of the deal, and the event must have been unforeseeable.
All three doctrines share a critical limitation: they don’t help when performance merely becomes more expensive. A party who can still perform but would lose money doing so will not find relief under any of them. These are narrow, last-resort doctrines, not escape hatches for bad deals.
Drafting a Stronger Clause
A generic force majeure clause pulled from a template is better than nothing, but not by much. The value of the clause tracks directly with how carefully it’s tailored to the specific deal and the specific risks the parties face. A few provisions separate clauses that actually work from those that just look reassuring.
- Name the events that matter most. Don’t rely on catch-all language alone. List pandemics, cyberattacks, supply chain disruptions, government orders, and any other event with a realistic chance of affecting the deal.
- Define what “inability to perform” means. Specify whether the standard is impossibility, impracticability, or something less severe like material hindrance. That single word choice determines how hard it is to invoke the clause.
- Set clear notice requirements: who must be notified, by what method, within what timeframe, and what the notice must contain.
- Spell out mitigation obligations. Require the affected party to take commercially reasonable steps to minimize disruption and to document those efforts. Consider whether seeking insurance recovery should be an explicit mitigation obligation.
- Address financial consequences. State what happens to deposits, progress payments, and prepaid expenses if the contract is suspended or terminated. Silence on this point guarantees a dispute.
- Include suspension caps and termination triggers. Define maximum suspension periods and the conditions under which either party can walk away. Without these, a suspended contract can linger indefinitely.
The clearest lesson from the wave of COVID-19 litigation is that clause specificity matters enormously. Courts that accepted force majeure defenses generally found the language broad enough to encompass government shutdown orders. Courts that rejected claims focused on clauses that didn’t list pandemics or health orders, or on parties who couldn’t show the specific causal link between the event and their particular inability to perform. Jurisdictions like New York applied particularly strict readings, excusing performance only when the triggering event was expressly listed. Vague catch-all language fared poorly almost everywhere.