What is Force Majeure?
Force majeure is a contract clause that excuses a party from performing their obligations when an extraordinary event beyond their control — like a natural disaster, war, or pandemic — makes performance impossible or impractical.
Force majeure (French for "superior force") is a legal doctrine and common contract clause that excuses a party from performing their contractual obligations when an extraordinary event beyond their control makes performance impossible, impractical, or illegal. It's essentially a carve-out designed to address the reality that some events cannot be anticipated or prevented — and that holding parties to strict performance in such circumstances would be unjust.
Force majeure clauses became widely discussed during the COVID-19 pandemic, when businesses across the globe invoked them to excuse non-payment, delayed delivery, and cancelled events.
What Qualifies as Force Majeure?
Force majeure events typically fall into categories:
Natural disasters or "Acts of God":
- Earthquakes, hurricanes, floods, wildfires
- Severe storms preventing delivery or performance
Human events:
- War, terrorism, civil unrest, riots
- Government actions (embargoes, sanctions, regulatory shutdowns)
- Strikes and labor disputes (in some contracts)
Health emergencies:
- Pandemics and declared public health emergencies
- Quarantine orders
The specific qualifying events are defined in the contract's force majeure clause itself — there is no universal definition. A clause that says "epidemics and pandemics" may cover COVID-19; one limited to "natural disasters" may not.
Key Requirements
Simply experiencing a difficult or unexpected event is not enough to invoke force majeure. Courts typically require:
- The event was unforeseeable — If the risk was known and allocatable at contract formation, force majeure may not apply (e.g., a hurricane in a known flood zone)
- The event was beyond the party's control — The party invoking force majeure cannot have caused or contributed to the disruption
- The event actually prevented performance — Increased cost or difficulty alone is usually insufficient; the event must make performance impossible or commercially impracticable
- Mitigation was attempted — Most courts require the invoking party to take reasonable steps to overcome the obstacle before invoking force majeure
Force Majeure vs. Impossibility and Frustration of Purpose
Three related doctrines address contract performance after unexpected events:
| Doctrine | What It Covers |
|---|---|
| Force majeure | Contractual clause allocating risk for specified extraordinary events |
| Impossibility/Impracticability | Common law doctrine when performance is objectively impossible |
| Frustration of purpose | When performance is still possible, but the underlying purpose is destroyed |
When a contract has an explicit force majeure clause, courts will generally apply it rather than common law doctrines. When no clause exists, parties may need to rely on impossibility or frustration of purpose — harder doctrines to invoke.
Real-World Examples
- Events industry: Concert promoters invoked force majeure during COVID-19 pandemic shutdowns to cancel events without liability for ticket refunds
- Commercial leases: Tenants and landlords argued force majeure during government-mandated business closures
- Supply chain contracts: Manufacturers invoked force majeure during earthquakes disrupting semiconductor supply in Japan
- Oil and gas: Energy companies invoked force majeure during government export bans
Drafting Considerations
Parties negotiating contracts should pay close attention to force majeure language:
- Ensure the clause includes relevant risk categories (pandemics, government actions, etc.)
- Address whether force majeure suspends performance or terminates the contract
- Specify notice requirements — most clauses require prompt notice to the other party
- Include a mitigation obligation to clarify expectations
Courts narrowly interpret force majeure clauses — if an event isn't listed or clearly implied, courts are unlikely to expand the clause to cover it. The more specific the drafting, the more predictable the outcome in a dispute. This is why reviewing force majeure language with an attorney before signing major contracts is highly advisable.