A force majeure clause excuses a party from performing when something outside its control makes performance impossible or impractical, without that party being in breach. It only covers what it lists or describes, so the drafting decides whether a pandemic, a supplier failure, or a cyberattack actually counts. The clause is not a free pass: it usually requires prompt notice, a duty to mitigate, and it almost never excuses the obligation to pay money.
TL;DR
- A force majeure clause suspends or excuses performance when a listed, uncontrollable event prevents it. It is read narrowly, so the event generally has to fit the clause's list or its catch-all.
- Recent disruptions (pandemics, supply-chain failures, cyberattacks, sanctions) exposed thin clauses. Modern clauses name epidemics, government action, and supply-chain and cyber events explicitly rather than relying on "act of God."
- The clause comes with duties: prompt written notice, a duty to mitigate and resume, and often a termination right if the event drags on past a set period (commonly 30 to 90 days).
- Force majeure almost never excuses payment. Inability to pay, market downturns, and a party's own cost increases are typically excluded.
- The most common review miss is a catch-all that does not require the event to be unforeseeable and beyond control, which either over-excuses or, when too narrow, fails to cover the event you actually face.
What a force majeure clause actually does
The clause reallocates the risk of the truly uncontrollable. Three mechanics matter.
1. It defines the trigger. A list of events (natural disasters, war, government action, epidemics, labor actions, utility and supply failures) plus, usually, a catch-all for other events "beyond the reasonable control" of the party and not caused by its fault. The trigger is everything: an event not within the list or the catch-all is not excused.
2. It sets the effect. While the event continues, the affected party's performance is suspended (or its deadlines extended) and it is not in breach. The clause says what is excused and what is not, and good drafting carves out payment obligations.
3. It imposes duties. The affected party must usually give prompt notice, use reasonable efforts to mitigate and work around the event, and resume as soon as it can. If the event lasts beyond a stated period, either party often gets a right to terminate so neither is trapped indefinitely.
Why it matters: the dollars at stake
Consider a manufacturer with a $5M annual supply contract. A government export ban cuts off a critical component, and the manufacturer cannot deliver for four months.
This is an illustrative example. The outcome turns on the clause.
- With a force majeure clause that names government action and supply-chain disruption, the manufacturer gives notice, performance is suspended, and it owes no breach damages for the four-month gap.
- With a clause that lists only "acts of God, war, and natural disaster", the export ban may not fit, the manufacturer is in breach, and it faces damages plus a possible termination for cause.
Same ban, same delay. Whether the manufacturer owes nothing or owes breach damages and loses the contract comes down to whether the clause named the kind of event that actually happened. That is why the event list is worth real drafting time, not a copy-paste.
Who wants what
| Party invoking force majeure (supplier) | Party relying on performance (buyer) | |
|---|---|---|
| Event list | Broad, with an open catch-all | Narrow, specific, genuinely uncontrollable events |
| Foreseeability | No unforeseeability requirement | Event must be unforeseeable and beyond control |
| Notice | Generous notice window | Prompt notice as a condition of relief |
| Mitigation | Reasonable efforts only | Active duty to mitigate and find alternatives |
| Payment | Suspend payment too | Payment never excused |
| Termination | Long runway before termination | Right to terminate after a short period |
The pattern: the supplier wants a broad trigger and to suspend everything including payment; the buyer wants a tight trigger, a hard duty to mitigate, payment kept alive, and an exit if the event drags on.
Market-standard language
A typical modern force majeure clause reads close to this:
FORCE MAJEURE.
Neither party will be liable for any delay or failure to perform (other
than a failure to pay amounts due) to the extent caused by an event
beyond its reasonable control that it could not have avoided by
reasonable diligence, including acts of God, fire, flood, earthquake,
epidemic or pandemic, war, terrorism, civil unrest, government action or
order, embargo or sanctions, labor disputes, and failure of utilities,
carriers, or telecommunications networks (a "Force Majeure Event").
The affected party will give the other party written notice within
[ten] days of the Force Majeure Event, use commercially reasonable
efforts to mitigate and resume performance, and keep the other party
informed. If a Force Majeure Event continues for more than [sixty]
consecutive days, either party may terminate this Agreement on written
notice without liability for the excused non-performance.
Three details carry the weight. The parenthetical "(other than a failure to pay amounts due)" keeps payment alive. "That it could not have avoided by reasonable diligence" builds the unforeseeability and control test into the trigger. The 60-day termination right stops either side from being trapped in a dead contract.
The negotiation: standard, fallback, walk-away
Negotiate the trigger, the duties, and the exit separately.
| Issue | Opening position (supplier) | Fallback both sides accept | Walk-away (buyer) |
|---|---|---|---|
| Event list | Broad list plus open catch-all | Specific list plus controlled catch-all | Closed list, no catch-all |
| Foreseeability test | None | "Beyond reasonable control and not avoidable" | Event must be unforeseeable at signing |
| Payment | Payment suspended too | Payment always due, performance suspended | Payment due, no excuse |
| Notice | 30 days | 10 days, written | Notice as a strict condition of relief |
| Mitigation | Reasonable efforts | Commercially reasonable efforts to work around | Hard duty to source alternatives |
| Termination | 120+ days | 30 to 90 days continuous event | 30 days, then either side exits |
The usual landing zone is a specific, modern event list with a controlled catch-all, payment kept alive, prompt written notice, a real mitigation duty, and a 30-to-90-day continuous-event termination right for either party.
Common carve-outs / variations
Force majeure clauses vary by what they include, exclude, and how they end:
- Named modern events. Post-2020 clauses commonly name epidemics and pandemics, government orders, supply-chain failures, sanctions, and cyberattacks, because courts read these clauses narrowly and a generic "act of God" may not cover them.
- Express exclusions. Many clauses carve out the events that are not force majeure: payment obligations, market or economic conditions, a party's own financial difficulty, and events the affected party caused or could have prevented.
- Subcontractor and supplier failure. Whether a supplier's failure counts is heavily negotiated. Buyers want it excluded unless the supplier itself was hit by force majeure; suppliers want it included.
- Allocation duty. If a force majeure event cuts a supplier's capacity, an allocation clause can require it to share remaining supply fairly among customers rather than cutting one off entirely.
- Termination and extension. Either an automatic deadline extension for short events or a termination right for long ones, usually keyed to a continuous-day threshold.
A buyer-protective exclusions fallback often reads:
A Force Majeure Event does not include: (a) any obligation to make a
payment; (b) general economic or market conditions, including a change
in cost or availability of materials; (c) a party's financial inability
to perform; or (d) any event caused by the affected party's negligence
or breach of this Agreement.
Jurisdiction and enforceability notes
Force majeure clauses are generally enforced according to their terms, with a few recurring principles:
- Read narrowly. Courts in most US states interpret force majeure clauses strictly and tend to require the event to fall within the specific list or a catch-all that is read in light of the listed examples. A generic "act of God" may not cover a pandemic or a regulatory action.
- Foreseeability and causation. Many courts require the event to have been unforeseeable and the actual cause of non-performance, and they look at whether the party could have performed despite the event. A clause that builds in these tests is more predictable.
- Common-law fallbacks. Where there is no force majeure clause, doctrines like impossibility, impracticability, and frustration of purpose may apply, but they set a high bar and are not a reliable substitute for a well-drafted clause.
- Sale of goods. Under the UCC section 2-615, a seller may be excused from timely delivery where performance is made impracticable by an unforeseen contingency, with a duty to allocate among customers in some cases. This is narrower than a broadly drafted contractual clause.
This is general information, not legal advice for a specific deal. Enforceability turns on the governing law, how the clause is worded, and the facts, and courts read these clauses strictly, so confirm against the controlling law before relying on force majeure.
Review checklist: red flags to catch
- The event list is dated ("act of God, war, natural disaster") and omits epidemics, government action, supply-chain, and cyber events.
- The catch-all has no unforeseeability or beyond-control test, so it can excuse ordinary business problems.
- Payment is not carved out, letting a party suspend payment under cover of force majeure.
- No notice deadline, or notice is not required at all, so you learn of the excuse late.
- No duty to mitigate or resume, letting the affected party sit idle.
- No termination right for a prolonged event, trapping both sides in a dead contract.
- The clause is one-sided, excusing only the supplier when either party could be affected.
How it interacts with other clauses
Force majeure connects to several performance and exit clauses; read it with:
- Termination: the long-event termination right works alongside the general termination provisions.
- Limitation of liability: force majeure excuses performance, while the cap limits liability when performance is not excused.
- Material adverse change: both address disruptive events, but a MAC is a closing condition, not an ongoing excuse.
- Service level agreement: SLAs usually exclude force majeure downtime from availability calculations.
- Notices: the force majeure notice must follow the contract's notice mechanics to be valid.
For the broader workflow, see the in-house contract review playbook.
FAQ
What is a force majeure clause? It is a provision that excuses a party from performing when a listed, uncontrollable event makes performance impossible or impractical, without that party being in breach. It typically covers events like natural disasters, war, government action, and, in modern clauses, epidemics and supply-chain failures.
Does a pandemic count as force majeure? Only if the clause covers it. Courts read force majeure narrowly, so a clause that lists "epidemic or pandemic" or "government action or order" is far more likely to cover a pandemic than a generic "act of God." After 2020, most well-drafted clauses name these events explicitly.
Does force majeure excuse payment? Almost never. Force majeure suspends performance like delivery or services, but the obligation to pay money is typically carved out. A party's financial inability to pay, or a market downturn, is generally not a force majeure event.
What duties come with invoking force majeure? Usually three: give prompt written notice of the event, use reasonable efforts to mitigate and work around it, and resume performance as soon as the event ends. Many clauses make prompt notice a condition of relief, so a late notice can cost the excuse.
Can a contract be terminated for a long force majeure event? Yes, most clauses include a termination right if the event continues past a set period, commonly 30 to 90 consecutive days. Either party can usually exit so neither is trapped in a contract that cannot be performed.
Does a supplier's failure count as force majeure? It depends on the drafting and is heavily negotiated. Buyers want supplier or subcontractor failure excluded unless the supplier was itself hit by a force majeure event. A clause that broadly excuses any supply-chain problem shifts a lot of risk onto the buyer.
What if there is no force majeure clause? Common-law doctrines like impossibility, impracticability, and frustration of purpose may excuse performance, but they set a high bar and are unpredictable. Under the UCC, a seller may be excused where performance is made impracticable by an unforeseen contingency. A well-drafted clause is far more reliable than these fallbacks.
Related clauses
Clauses that get negotiated alongside this one.
