What does force majeure mean?

Force majeure is a French term meaning "superior force." In contract law, it refers to unforeseeable, extraordinary events beyond either party's control that prevent one or both parties from fulfilling their contractual obligations. Common examples include natural disasters, wars, government actions, pandemics, and severe supply chain disruptions. The clause excuses or delays performance when these events occur.

Does every contract automatically include force majeure protection?

No. Unlike some legal concepts, force majeure is not implied in most U.S. contracts. It only applies if the contract explicitly includes a force majeure clause. Without one, parties must rely on common law defenses like impossibility or impracticability of performance, which are much harder to prove and less predictable in outcome. This is why including an explicit clause is so important.

Does a force majeure clause cover pandemics?

Only if the clause specifically lists pandemics, epidemics, or public health emergencies — or uses broad enough catch-all language. Post-COVID, most well-drafted force majeure clauses now explicitly include pandemic-related events. However, if a pandemic is foreseeable at the time the contract is signed (as COVID arguably is now), some courts may not consider it a force majeure event unless the clause expressly names it.

Can I use force majeure to get out of a contract I regret?

No. Force majeure is not an escape hatch for bad deals, financial hardship, or buyer's remorse. The triggering event must actually prevent performance — not just make it more expensive or inconvenient. Courts scrutinize force majeure claims carefully. If you could still perform but would lose money doing so, force majeure does not apply. Economic downturns and market changes are generally not force majeure events.

What is the difference between force majeure and frustration of purpose?

Force majeure excuses performance when an extraordinary event makes it impossible or impracticable. Frustration of purpose applies when performance is still possible, but the underlying reason for the contract has been destroyed. For example, if you rent a venue for a wedding and the government bans gatherings, force majeure excuses the venue's obligation to provide the space. Frustration of purpose excuses your obligation to pay because the entire purpose of the rental has been destroyed. Both doctrines exist to address unforeseeable disruptions, but they apply to different situations.

Force Majeure Clause: The Post-COVID Must-Have in Every Contract

Before 2020, force majeure clauses were the boilerplate you skimmed past. After COVID-19, they became the first thing lawyers checked.

The pandemic exposed a hard truth: millions of contracts had no plan for what happens when the world stops. Businesses that had strong force majeure language renegotiated or suspended obligations. Businesses that didn't spent years in litigation.

If your contracts still use pre-pandemic boilerplate — or worse, don't include force majeure at all — you're leaving yourself exposed to the next disruption. And there's always a next disruption.

What Is a Force Majeure Clause?

A force majeure clause excuses or delays contractual performance when extraordinary events beyond either party's control make performance impossible, impracticable, or illegal. It's the contract's answer to "what if something completely outside our control prevents us from doing what we promised?"

Standard force majeure events include:

Natural disasters (earthquakes, hurricanes, floods, wildfires)
Pandemics and epidemics
War, terrorism, and armed conflict
Government actions (sanctions, embargoes, regulatory changes)
Civil unrest (riots, strikes, labor disputes)
Infrastructure failures (power grid outages, internet failures)
Supply chain disruptions beyond reasonable planning

What force majeure does NOT cover:

Financial difficulty or market downturns
Poor business planning
Events that were foreseeable at contract signing
Performance that's merely more expensive or inconvenient
Events caused by the party claiming force majeure

Why COVID Changed Everything

Before 2020, most force majeure clauses were copy-paste boilerplate. They listed "acts of God, war, fire, flood" and called it done. Then COVID hit and the following happened:

Contracts without force majeure clauses left parties with no mechanism to pause or exit without breaching. Landlords couldn't excuse rent. Service providers couldn't excuse delayed delivery. The only options were expensive litigation or ad hoc renegotiation.

Contracts with vague force majeure clauses triggered disputes over whether a pandemic qualified as a force majeure event. If the clause didn't specifically mention "pandemic," "epidemic," or "public health emergency," courts split on whether catch-all language like "other events beyond reasonable control" was sufficient.

Contracts with well-drafted clauses that specifically named pandemics provided clear, enforceable pathways for suspension, renegotiation, or termination.

The lesson was clear: specificity matters more than length, and the clause you ignored is the one that costs you.

Anatomy of a Strong Force Majeure Clause

1. Defined Triggering Events

List specific events — don't rely solely on catch-all language. A comprehensive list includes:

Natural events — earthquake, hurricane, flood, wildfire, volcanic eruption, tsunami
Health events — pandemic, epidemic, quarantine, public health emergency
Government action — sanctions, embargo, import/export restrictions, mandatory shutdown orders, regulatory changes
Conflict — war, armed conflict, terrorism, insurrection, civil unrest
Labor — strikes, lockouts, labor shortages (excluding those caused by the party's own actions)
Infrastructure — power failure, telecommunications failure, internet outage, transportation disruption
Supply chain — raw material shortage, supplier failure, shipping disruption
Catch-all — "and other events of similar nature beyond the reasonable control of the affected Party"

Why both a list and a catch-all? The list provides clarity and predictability. The catch-all provides coverage for events nobody anticipated. Together, they give you the strongest protection.

2. Causation Standard

The clause must specify the connection between the event and non-performance:

"Prevents" — the strictest standard; the event must make performance truly impossible
"Hinders or delays" — a broader standard; covers situations where performance is significantly more difficult
"Makes commercially impracticable" — the broadest practical standard; includes situations where performance is possible but unreasonably burdensome

Recommendation: Use "prevents or materially hinders" — it covers true impossibility and situations where performance is so disrupted that requiring it would be unreasonable.

3. Notice Requirements

The party claiming force majeure must notify the other party:

Timeline — within a reasonable period (typically 5 to 14 days) after the event occurs or becomes known
Content — description of the event, its expected impact on performance, estimated duration, and steps being taken to mitigate
Method — written notice per the contract's general notice provisions
Updates — ongoing obligation to provide status updates and notify when the event ends

4. Mitigation Obligations

Force majeure doesn't mean "stop trying." The affected party should be required to:

Take reasonable steps to minimize the impact
Explore alternative means of performance
Resume performance as soon as reasonably possible after the event ends
Document mitigation efforts (useful if the claim is later disputed)

5. Consequences

Define what happens during and after the force majeure event:

During the event:

Performance obligations are suspended (not eliminated)
The other party's corresponding obligations are also suspended (you don't pay for services not delivered)
Neither party is liable for damages caused by the delay

If the event continues beyond a threshold:

Either party may terminate the contract (typically after 30, 60, or 90 days of continued force majeure)
Termination provisions should address payment for partial performance, return of materials, and release of further obligations

Example clause:

"If a Force Majeure Event continues for more than sixty (60) consecutive days, either Party may terminate this Agreement upon fifteen (15) days' written notice to the other Party. Upon such termination, Provider shall be entitled to payment for all Services satisfactorily completed prior to the Force Majeure Event, and Client shall be entitled to a pro-rata refund of any prepaid fees for Services not yet performed."

6. Allocation of Risk

In long-term contracts or contracts with significant financial exposure, consider allocating risk between the parties:

Shared risk — both parties bear their own costs during the force majeure period
Insurance requirements — require one or both parties to maintain business interruption insurance
Price adjustment — allow for renegotiation of pricing if force majeure materially changes the cost of performance

Force Majeure by Contract Type

Service Agreements

Focus on: delivery timelines, service level credits during suspension, alternative provider rights if force majeure exceeds a specified period.

Freelance Contracts

Focus on: milestone deadline extensions, payment for completed work, right to engage alternative contractors if the force majeure extends beyond the project timeline.

Lease Agreements

Focus on: rent abatement during government-mandated closures, landlord obligation to maintain the property, tenant's right to terminate if the premises are unusable for an extended period. Note that many jurisdictions have specific statutory provisions for lease force majeure.

Supply and Manufacturing Contracts

Focus on: allocation of limited supply (pro rata among existing customers), price escalation mechanisms, alternative sourcing rights, minimum delivery thresholds below which the buyer can seek alternatives.

Common Drafting Mistakes

Relying on Boilerplate

Pre-pandemic boilerplate ("acts of God, fire, flood, war") doesn't cut it. If your clause doesn't mention pandemics, supply chain disruptions, or government mandated closures, it has gaps that will matter.

Forgetting Foreseeability

Here's the post-COVID catch: an event that was unforeseeable in 2019 is arguably foreseeable now. Some courts have held that because COVID demonstrated the reality of pandemic risk, parties who sign contracts today cannot claim pandemic-related force majeure unless the clause explicitly includes it.

Practical fix: Name pandemic-related events explicitly. Don't rely on catch-all language for risks that are now foreseeable.

No Termination Trigger

A clause that suspends obligations indefinitely — with no termination right if the event persists — leaves both parties in limbo. Always include a termination right after a defined period of continued force majeure.

Ignoring the Other Side

Force majeure should be mutual. If only one party can claim force majeure, the clause creates an unbalanced contract that may face scrutiny in enforcement.

No Mitigation Requirement

Without a mitigation obligation, a party could theoretically use force majeure as an excuse to stop performing even when partial performance is possible. Mitigation language protects both sides.

The Difference Between Force Majeure and Related Doctrines

| Doctrine | When It Applies | Source | |---|---|---| | Force Majeure | Specific events listed in the contract | Contract clause | | Impossibility | Performance is literally impossible | Common law | | Impracticability | Performance is possible but unreasonably burdensome | UCC / common law | | Frustration of Purpose | Performance is possible but the contract's purpose is destroyed | Common law |

Force majeure is the strongest protection because you control the definition. The common law doctrines are fallback positions — harder to prove and less predictable in court.

Bottom Line

Force majeure went from boilerplate afterthought to essential contract provision in the span of a few months in 2020. The lesson is permanent: extraordinary disruptions happen, they happen more often than we plan for, and the contract you signed determines how much they cost you.

Every contract needs a force majeure clause. Every force majeure clause needs specificity. And after COVID, "we didn't think to include pandemics" is no longer a defensible position.

When you create a contract on contract.diy, force majeure provisions are included with comprehensive event lists, proper notice mechanisms, mitigation obligations, and termination triggers — drafted for today's risk landscape, not yesterday's boilerplate.