TL;DR: A force majeure clause excuses a party from performing its contractual obligations when an extraordinary event beyond its control makes performance impossible or radically different. COVID-19 brought these clauses into sharp focus. What is covered, how notice is given, and what relief is available varies significantly by contract and jurisdiction.
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Force majeure (French for "superior force") is a contractual mechanism that suspends or excuses obligations when extraordinary events occur that are:
Unlike everyday business risks — a supplier going bankrupt, a market downturn, a cost increase — force majeure events are genuinely exceptional: natural disasters, wars, pandemics, government actions, and similar events that neither party could realistically have planned for.
Force majeure is frequently misunderstood. It does not apply to:
A party cannot simply invoke force majeure because performance has become more difficult or expensive. The event must genuinely prevent or radically change performance.
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Try it free →A well-drafted force majeure clause addresses:
The clause either:
Specific lists provide certainty but may miss novel events. Catch-all language covers more situations but creates uncertainty about what qualifies.
Example:
"Force Majeure Event means any event beyond a party's reasonable control including (without limitation): acts of God, war, riot, civil commotion, government action, pandemic, epidemic, fire, flood, earthquake, storm, industrial action, or failure of utilities."
The event must prevent performance — not merely make it more difficult. Some clauses require that the event "prevents, hinders, or delays" performance; others require complete prevention.
The affected party must give notice within a specified period (often 5–14 days of the event). Failure to give proper notice can disqualify the claim even if a genuine force majeure event occurred.
The affected party is typically required to use reasonable efforts to overcome or minimise the effect of the force majeure event. They cannot simply stop performing and invoke the clause without trying to find alternative solutions.
What happens if force majeure is validly invoked?
Force majeure typically excuses performance obligations (delivering goods, providing services) but does not automatically excuse payment for work already done. Check whether the clause addresses this.
In common law jurisdictions (UK, AU, NZ, CA, US), where a contract does not include a force majeure clause, the doctrine of frustration may apply. Frustration occurs when an unforeseen event makes performance:
Key differences:
| Feature | Force Majeure Clause | Frustration Doctrine |
|---|---|---|
| Source | Contractual clause | Common law doctrine |
| Threshold | As defined in the clause | Impossibility or radical difference |
| Consequences | As per the clause (suspension, extension, termination) | Automatic discharge of both parties' future obligations |
| Partial relief | Clause can provide partial relief | Frustration discharges the whole contract |
| Law Reform Acts | N/A | UK Law Reform (Frustrated Contracts) Act 1943; AU Frustrated Contracts Act |
| Civil law jurisdictions | Force majeure (Code civil Art. 1218 in France) | Imprévision doctrine (hardship) |
| Country | Force majeure law | Key legislation | Hardship/imprévision |
|---|---|---|---|
| UK | Contract-based; common law frustration if no clause | Law Reform (Frustrated Contracts) Act 1943 | No general hardship doctrine; limited judicial discretion |
| France | Civil code force majeure | Code civil Art. 1218 | Imprévision (Art. 1195): party may request renegotiation for hardship |
| Sweden | Contract-based; Sale of Goods Act has exemption provisions | Köplagen (SFS 1990:931) s. 27 | General good faith obligation; judicial adaptation possible |
| Australia | Contract-based; frustrated contracts legislation in most states | Frustrated Contracts Act (varies by state) | No general hardship doctrine |
| New Zealand | Contract-based; frustrated contracts | Contractual Remedies Act 1994 | Limited judicial discretion |
| Canada | Contract-based; frustrated contracts legislation | Frustrated Contracts Act (Ontario, British Columbia, etc.) | Limited; Québec Civil Code Art. 1470 |
| USA | Contract-based; common law impossibility and impracticability | UCC § 2-615 (goods contracts) | No general federal doctrine; state law varies |
Sources:
Check whether there is a force majeure clause and what it says. Check the specific events listed, the notice period, the threshold for invoking it, and the consequences.
Gather evidence that the event occurred, is beyond your control, and is preventing performance. This includes news reports, government orders, supplier notifications, and internal records.
Can you perform in a different way? Can you source from a different supplier? Can you deliver late rather than not at all? Force majeure is a last resort, not an easy exit from a difficult contract.
Send formal written notice within the time period specified in the contract. Include:
Use reasonable efforts to overcome the event. Keep records of your mitigation attempts.
Provide regular updates. If the situation changes, notify the other party promptly.
If the clause includes a long-stop termination period, monitor it carefully and decide in advance whether you want to terminate or continue.
When reviewing or negotiating a commercial contract, consider:
Scope of events: Is the list comprehensive enough to cover events relevant to your industry (cyberattacks, supply chain failures, regulatory changes)?
Performance standard: Does "prevent" or "hinder or delay" better suit your risk profile? As a buyer, you want a high threshold; as a seller, you want a lower threshold.
Notice period: Is the notice period practical given how quickly a crisis can develop?
Mitigation: Is the mitigation obligation reasonable? Requiring "best efforts" is more onerous than "reasonable efforts."
Termination right: Does the long-stop termination period give both parties sufficient time while not leaving you locked into an indefinite suspension?
Exclusions: Some force majeure clauses exclude payment obligations even during force majeure. Be alert to these.
Q: Did COVID-19 trigger force majeure clauses?
In many cases, yes — where the clause covered pandemics or government actions and the affected party could show that government restrictions genuinely prevented performance. But not every COVID-19 related disruption qualified. Courts required parties to demonstrate actual prevention of performance, not just inconvenience.
Q: Can I invoke force majeure because my costs have increased dramatically?
Generally no. Increased costs alone — even very significant ones — do not constitute force majeure in most jurisdictions. Some civil law jurisdictions (particularly France under imprévision) allow for contract renegotiation or judicial adjustment when performance becomes excessively onerous, but this is different from force majeure.
Q: What if my supplier invokes force majeure — do I have to accept it?
You should carefully review whether their notice was given on time, whether the event actually prevents their performance rather than just making it more difficult, and whether they are taking reasonable mitigation steps. If any of these are questionable, consult a lawyer about your options.
MmowW Scrib🐮 helps you prepare and organise documents related to force majeure events across 7 countries, including:
Cost Calculator — Estimate preparation costs for force majeure documentation.
Filing Deadlines — Track the notice periods and other deadlines that apply when invoking force majeure.
Employment Checker — When force majeure affects your workforce, check employment law requirements for your jurisdiction.
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