Force Majeure

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Force Majeure: Definition, Elements, and Practical Guidance

What is force majeure?

A force majeure clause excuses or suspends contractual performance when an extraordinary event outside the parties’ control makes performance impossible, illegal, or impracticable. Common examples include natural disasters (earthquakes, floods, hurricanes), war or terrorism, and major public-health crises such as pandemics. The doctrine originated in civil law (Napoleonic) systems but is widely used in common-law contracts—where precise drafting is especially important.

Core elements of a valid force majeure event

Most force majeure clauses and legal tests require three elements:

  • Unforeseeability — the event could not reasonably have been anticipated when the contract was formed.
  • Externality — the event is beyond the parties’ control and not caused by either party.
  • Material impact — the event makes performance impossible, illegal, or so burdensome that performance is effectively frustrated.

How to invoke a force majeure clause

Follow these steps when claiming force majeure:

  1. Check the contract language
  2. Identify listed triggers and any broadly worded catch-alls (e.g., “acts of God,” “including but not limited to…”).

  3. Note notice, proof, duration, mitigation, and termination provisions.

  4. Establish causation and timing

  5. Show a direct causal link between the event and the inability to perform.

  6. Demonstrate that the event occurred after contract formation and was unforeseeable.

  7. Comply with notice and procedural requirements

  8. Give timely, written notice as required by the clause.

  9. Provide supporting documentation (government orders, weather reports, supplier communications).

  10. Mitigate and document efforts

  11. Show reasonable steps taken to avoid or minimize the impact.

  12. Preserve records of alternatives considered and costs incurred.

  13. Distinguish temporary vs. permanent impediments

  14. Many clauses excuse performance temporarily; only prolonged or permanent impossibility may permit termination or more drastic remedies.

Jurisdictional differences and standards

  • Civil-law jurisdictions (e.g., France) often apply a concept of force majeure as a recognized doctrine and may use broader standards.
  • Common-law jurisdictions (e.g., U.S., U.K.) rely heavily on the contract’s wording—courts tend to require specific listed events.
  • International instruments and arbitral practice sometimes apply “impracticability” or “hardship” standards, which consider whether performance has become unreasonably burdensome, not strictly impossible.

Examples and notable issues

  • Natural disasters (floods, earthquakes, hurricanes) and armed conflict commonly trigger clauses if they meet the clause’s requirements.
  • Pandemics: COVID-19 produced many disputes. Courts have split where contracts required specific physical damage or listed only certain calamities; some rulings held that pandemic-related closures did not fit narrowly worded clauses.
  • Recurrent events: If an event repeats or becomes predictable (e.g., seasonal flooding, chronic supply-chain disruption), courts may find it foreseeable and not excuse performance.

Force majeure versus pacta sunt servanda

“Pacta sunt servanda” — the principle that agreements must be kept — is a foundational legal norm. Force majeure is an exception, not a rule. Successfully escaping contractual liability requires strong proof that the event was unforeseeable, external, and materially impeded performance; that burden makes claiming force majeure challenging.

Practical drafting and risk-management tips

  • Be specific: list events that should trigger relief and define key terms (e.g., “pandemic,” “governmental order,” “supply-chain disruption”).
  • Include procedural steps: notice timing, required documentation, duration of suspension, and whether relief is temporary or permanent.
  • Address mitigation: require parties to use reasonable efforts to overcome the impediment.
  • Allocate risk: consider price adjustments, alternative performance, insurance requirements, or relief through hardship/renegotiation clauses.
  • Tailor clauses to local risks and governing law to improve enforceability.

Key takeaways

  • Force majeure clauses shift or suspend liability for events that are unforeseeable, external, and materially disruptive.
  • Enforceability depends mainly on the contract’s wording and applicable law; common-law courts expect specificity.
  • To rely on force majeure, comply with contractual notice and proof requirements and show efforts to mitigate.
  • Draft proactively: clearly defined triggers, procedures, and remedies reduce disputes and increase the chance a clause will be upheld.

Further reading

For guidance on drafting and interpretation, consult sources such as the International Chamber of Commerce materials on force majeure and hardship, and legal summaries from established law schools or leading law firms.