What Is Force Majeure? Clause Elements and Legal Implications

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Force majeure (French for “greater force”) is a contract clause that relieves one or both parties of liability for failing to perform when an extraordinary event outside their control, such as a war, a flood or an earthquake, prevents performance. The clause does not erase the contract by default. It excuses or suspends the affected obligations for as long as, and to the extent that, the listed event makes them impossible to carry out.

How a Force Majeure Clause Works

A party claiming force majeure has to show that the event fits the clause and that the event, not its own choices, caused the failure to perform. Three tests sit at the core of the concept:

1. Unforeseeability: the parties could not reasonably have anticipated the event when they signed.
2. Externality: the event came from outside the parties’ control and was not caused by the party relying on it.
3. Impossibility: the event made performance impossible, not merely more expensive or inconvenient.

What the clause usually contains

Drafting varies, but a typical clause has several working parts:

• A list of qualifying events: for example natural disasters (“acts of God”), war, terrorism, riots, government orders, epidemics or strikes.
• A catch-all phrase: wording such as “or any other event beyond the reasonable control of the party.” Courts may read a catch-all narrowly, limiting it to events similar to the ones listed.
• Notice requirements: a deadline and method for telling the other party that force majeure is being claimed.
• A duty to mitigate: the affected party must take reasonable steps to limit the damage and resume performance.
• Consequences: suspension of obligations during the event, extension of deadlines, and often a right for either side to terminate if the disruption lasts beyond a stated period.

How to invoke it

In practice, invoking force majeure means reading the clause to confirm the event is covered, sending notice within the required time, documenting how the event prevented performance, and showing the steps taken to reduce the impact. Missing the notice deadline alone can defeat an otherwise valid claim.

Civil Law vs. Common Law

Force majeure originated in French civil law and is a recognized standard in the many jurisdictions whose legal systems derive from the Napoleonic Code. In those systems, a party may rely on it even where the contract says little, provided the event meets the three legal tests above.

Common law systems treat force majeure as a creature of contract. A U.S. or U.K. court generally enforces the clause the parties wrote and looks for whether the specific event falls within its language. Where a contract has no force majeure clause, a party must rely on narrower background doctrines instead (see below).

The International Chamber of Commerce has published model force majeure and hardship clauses that use a standard of impracticability: performance would be unreasonably burdensome and expensive, if not impossible. Parties in international trade often adopt or adapt that wording.

Example of Force Majeure

Hypothetical example. An avalanche destroys a supplier’s factory in the French Alps. Shipments to a client are delayed for months, and the client sues for damages. The supplier raises a force majeure defense, arguing the avalanche was unforeseeable, external and unavoidable.

The outcome turns on the details. If avalanches have occurred in the area before, a court may decide the event was foreseeable. If the contract is governed by a common law system and does not name avalanches or natural disasters, the supplier may find no clause to rely on and owe damages.

Force Majeure vs. Related Concepts

Pacta sunt servanda. This Latin principle (“agreements must be kept”) is fundamental in civil and international law and reflected in common law. Force majeure is an exception to it, which is why courts set a high bar.

Act of God. An act of God is a natural event, such as a hurricane or earthquake, that no person caused. It is one category of force majeure. Force majeure is broader and also covers human events like war, terrorism and government action.

Frustration and impossibility. Common law courts can discharge a contract under the doctrine of frustration (U.K.) or impossibility and impracticability (U.S.) when an unforeseen event fundamentally changes the obligation. These doctrines apply without any clause but are interpreted narrowly, and they usually end the contract rather than suspend it.

Hardship. Force majeure deals with events that prevent performance. Hardship clauses deal with events that make performance far more costly, and they typically trigger renegotiation rather than an excuse.

Limited liability. Force majeure does not limit liability in general. It excuses liability only for the failure caused by the qualifying event, while other obligations and breaches remain enforceable.

Limitations: The COVID-19 Test

The 2020 pandemic produced a wave of force majeure litigation, and the results show how much depends on wording. When Regal Cinemas closed theaters in Virginia, the U.S. District Court for the Western District of Virginia found that the lease’s clause applied only if the property was “damaged or destroyed by fire, flood, natural causes, or other casualties.” A pandemic closure did not fit that language, so Regal was not excused.

In a separate case, a ruling in favor of the University of Vermont found that because its closure resulted from the pandemic rather than another type of catastrophe, it did not have to refund housing or meal plans.

Events a party could have planned for, rising costs or a market downturn generally do not qualify. Contracts that define force majeure precisely, with reference to the threats relevant to the location and industry, hold up better than generic boilerplate.

FAQs

The Bottom Line

Anyone signing or enforcing a contract, especially under U.S. or U.K. law, depends on the exact wording of the force majeure clause. Courts set a high bar and often read catch-all phrases narrowly, so a clause that names the threats relevant to the location and industry holds up better than generic boilerplate. Parties relying on it should give timely notice, document the impact and take steps to mitigate it.