What Is a Force Majeure Clause? Plain-English Guide

Force majeure is one of those contract terms that sounds intimidating until you understand what it means. It's French for "superior force," and in contract law it refers to a clause that excuses one or both parties from performing their obligations when something extraordinary happens that was outside their control and impossible to anticipate.

If a hurricane destroys a venue, a war cuts off a supply chain, or a government shutdown makes performance illegal, a force majeure clause may excuse the affected party from being in breach of contract.

Here's what the clause actually covers, and where it falls short.

What a Force Majeure Clause Covers

The coverage of a force majeure clause is entirely determined by how it's written. There is no standard legal definition that applies automatically. Courts interpret these clauses based on the exact language in your specific contract.

Most force majeure clauses list triggering events explicitly. Common examples include natural disasters (earthquakes, floods, hurricanes), acts of war or terrorism, government actions (embargoes, regulatory changes, government shutdowns), labor strikes, and pandemics or public health emergencies.

The COVID-19 pandemic generated an enormous amount of force majeure litigation because many contracts written before 2020 didn't explicitly list pandemics as a triggering event. Courts were divided. Some found that general "acts of God" language covered a pandemic. Others found it did not. The lesson: if your contract doesn't list the specific event, you may not be covered.

Some contracts include a catch-all phrase like "or any other event beyond the reasonable control of the party." That language helps but doesn't guarantee coverage. Courts still require the event to be genuinely unforeseeable and outside your control.

What Force Majeure Does Not Cover

Force majeure does not cover events that are foreseeable, preventable, or simply inconvenient.

A supplier running out of stock is not force majeure. A contractor who underestimated how long a project would take is not experiencing force majeure. A party who can't perform because they spent the money they owed you on something else is not protected by force majeure.

The other critical limitation is that force majeure typically requires the event to make performance impossible or illegal, not just harder or more expensive. If a global supply chain disruption triples the cost of your raw materials, your contract probably requires you to absorb that cost unless the clause specifically covers price spikes or supply disruptions.

Courts have been consistent on this: financial hardship alone is not force majeure. The event has to prevent performance, not just make it more expensive.

What the Clause Actually Does

When a valid force majeure event occurs, the clause typically does one of three things.

The most common outcome is suspension of obligations. The affected party's duties are paused for the duration of the force majeure event. Once the event ends, performance resumes. Neither party is in breach during the suspension period.

Some clauses allow termination if the event continues beyond a specified period, often 30 to 90 days. If the supply chain disruption lasts four months and the clause allows termination after 60 days, either party may be able to exit the contract without liability.

Less commonly, a clause will require the affected party to notify the other party within a specific window, usually 5 to 30 days of the event, to invoke the protection. If you miss that notice window, you may lose the right to claim force majeure even if the event was legitimate.

Notice Requirements

The notice requirement is the most commonly missed part of a force majeure clause.

Many contracts require the party claiming force majeure to provide written notice to the other party within a specific period after the triggering event, typically 5, 10, or 30 days. The notice usually needs to describe the event, explain how it prevents performance, and estimate how long the disruption will last.

If you're in a situation where force majeure might apply, find the notice requirement in your contract and send written notice immediately. Waiting until the other party asks why you're not performing can forfeit your protection entirely.

What COVID-19 Litigation Established

The pandemic produced more force majeure case law in two years than the preceding decade. Several patterns emerged that are now instructive for how courts read these clauses.

Courts that found COVID-19 was a force majeure event generally relied on clauses that explicitly listed "pandemic," "epidemic," "public health emergency," or "government-ordered closure" as triggering events. When the clause said those words, courts found the event covered.

Courts that denied force majeure claims generally did so on one of two grounds. First, that the event did not make performance impossible, only more expensive or inconvenient. Restaurants that had to shift to takeout, hotels that had reduced occupancy, venues that could have hosted outdoor events were found by some courts to have retained the ability to perform even if that performance looked different. Second, that a global pandemic was a foreseeable risk, at least in abstract terms, even before 2020, because prior outbreaks like SARS and H1N1 had demonstrated the category of risk.

The practical lesson: "acts of God" and "circumstances beyond our control" without a specific list are weak force majeure clauses. If your contract has one of those catch-all phrases and nothing more specific, you should not assume it covers anything you can't anticipate.

Force Majeure vs. Frustration of Purpose

Force majeure and frustration of purpose are related but different legal concepts, and contracts sometimes conflate them.

Force majeure says performance became impossible or illegal. The hurricane destroyed the venue. The government banned the activity. You literally cannot do what you promised.

Frustration of purpose says performance is still technically possible but the entire reason for the contract no longer exists. A hotel room can still be provided, but the event the guest booked it for was cancelled due to a government order. The room isn't destroyed. Performance isn't technically impossible. But the reason for the contract is gone.

Some courts apply frustration of purpose as a common law defense even when a force majeure clause doesn't cover the situation. Others treat it narrowly. Whether frustration of purpose applies depends on state law and the specific facts.

If your contract has a force majeure clause, courts generally look to that clause first and apply common law frustration of purpose only if the clause doesn't address the situation. If your contract has no force majeure clause, common law frustration arguments become more important.

Red Flags in Force Majeure Clauses

Not all force majeure clauses are written equally. There are a few provisions worth scrutinizing.

Watch for clauses that require the affected party to take reasonable steps to overcome the force majeure event. This sounds fair but can be used to argue that you should have found an alternative supplier, rerouted delivery, or found another way to perform. Understand what mitigation effort is expected before the clause kicks in.

Watch for clauses that allow only one party to invoke force majeure, usually the vendor or service provider. A mutual clause protects both parties. A one-sided clause only protects the party that wrote it.

Watch for very narrow event lists with no catch-all language. If the clause lists only "war, fire, and flood" and nothing else, it probably won't help you in a situation the drafters didn't anticipate.

Watch for clauses that treat force majeure as a full discharge of obligations rather than a suspension. If the clause says the affected party is "released from all obligations," that could mean they owe you nothing, including refunding prepayments, if they invoke it successfully. This is one of several provisions worth checking in any vendor agreement before you sign.

How It Affects You as the Non-Affected Party

If your vendor or contractor invokes force majeure, you need to understand what the clause actually allows them to do.

Are they suspending performance or terminating the contract? Are they keeping your deposit or prepayment, or does the clause require a refund? Are you entitled to find an alternative vendor in the meantime without being in breach of exclusivity provisions?

These questions are answered by the specific clause in your contract. If the language is ambiguous, get clarity in writing before you accept the force majeure claim.

Before You Sign

Force majeure clauses were largely ignored until COVID made them front-page business news. Now they matter. The events of recent years have shown that genuinely unforeseeable disruptions happen, and the language in your contract determines who bears the cost.

If you upload your contract to Clausely, it will identify the force majeure clause, quote the triggering events it covers, and flag anything unusual about the notice requirements or the scope of relief. Understanding the clause before you sign is much easier than arguing about it after a disruption has already happened.