Force Majeure
A clause excusing a party from performing when an extraordinary event beyond their control makes performance impossible or illegal.
While straightforward in theory, many businesses fail to actively track obligations tied to this concept - often resulting in missed deadlines, unintended renewals, penalties, or loss of contractual rights.
US Law · For business owners and foundersWhat is a Force Majeure?
A force majeure clause excuses one or both parties from performing their contractual obligations when an extraordinary event beyond their control makes performance impossible, illegal, or commercially impractical.
Under US contract law, there is no standalone legal doctrine of force majeure - it exists only if written into the contract. Courts interpret these clauses narrowly. If the triggering event is not specifically listed (or clearly within the listed categories), courts often find the clause does not apply.
This is different from commercial impracticability (UCC §2-615) and the common law doctrine of impossibility, which can apply even without a contract clause but have a very high threshold and rarely succeed.
In practice, many teams rely on a contract expiry tracking system to stay on top of dates and obligations tied to clauses like this.
Key Elements
Qualifying Event
The triggering event must be listed or fall within a listed category. Courts apply the specific language literally - "Acts of God" traditionally does not cover pandemics or government orders.Direct Causation Requirement
The event must directly prevent performance - not just make it more expensive or difficult. Economic hardship, reduced demand, or cost increases generally do not qualify.Foreseeability
The event must have been unforeseeable at the time of contracting. If you sign a supply contract in April 2020, you cannot claim COVID-19 was unforeseeable.Notice Obligation
Most clauses require written notice within 3-10 business days of the triggering event. Missing this deadline can waive your right to invoke the clause entirely.Mitigation Duty
The invoking party must use reasonable efforts to mitigate the impact and resume performance as soon as reasonably practicable.Duration and Termination Right
Most well-drafted clauses include a right to terminate if the force majeure continues beyond a set period - typically 30, 60, or 90 days.Real-World Example
An event company contracts to host a corporate conference for 500 people in March 2020. The venue has a force majeure clause covering "government orders prohibiting public gatherings." The state issues a shelter-in-place order two weeks before the event. The venue invokes force majeure and cancels without refunding the $75,000 deposit.
Courts split on this exact scenario. Where the force majeure clause specifically said the venue would "refund all payments" if triggered, refunds were ordered. Where the clause had no refund language, none was required. Lesson: "force majeure applies" and "you get your money back" are two entirely separate questions determined by specific contract language.
This is why many businesses adopt automated deadline tracking to ensure no critical dates are missed before they pass.
Sample Clause Language
Modern Post-COVID Force Majeure ClauseWatch Out For
"Acts of God" is too narrow post-COVID
This phrase traditionally covers only natural disasters, not pandemics or government orders. After COVID, explicitly list "pandemic," "epidemic," and "government orders restricting operations" as triggering events.Economic hardship is not force majeure
Courts consistently hold that price increases, supply cost spikes, reduced demand, and general economic disruption do not trigger force majeure. The event must prevent performance, not just make it less profitable.Notice deadlines are firm
Most clauses require written notice within 3-10 business days of the triggering event. Miss the deadline and you may permanently waive your right to invoke the clause.Payment obligations are usually excluded
Courts typically do not allow force majeure to excuse non-payment. If you want force majeure to potentially cover payment timing, you must explicitly include that in the clause scope.Suspension only, not automatic termination
Many force majeure clauses only suspend performance temporarily. Review whether the clause gives you a termination right if the event continues beyond a set period.Don't let force majeure deadlines catch you off guard
Key dates tied to force majeures - renewal windows, expiry cutoffs, notice periods - can easily slip through the cracks when tracked manually. Missing them triggers automatic extensions, penalties, or lost rights. ExpiryEdge tracks every critical deadline and sends automated reminders before they're due - so nothing slips.
Instead of relying on spreadsheets or manual follow-ups, a centralized renewal reminder system ensures every deadline is visible, tracked, and actioned automatically.
How to Use This in Your Favor
List triggering events explicitly and broadly
Post-COVID best practice: explicitly include "pandemic, epidemic, or public health emergency," "government orders," and "supply chain disruptions caused by the foregoing." The more events listed, the more protection you have.Include a termination right on extended force majeure
Negotiate a clause allowing either party to terminate with no penalty if force majeure continues beyond 30, 60, or 90 days. This is critical in long-term service contracts.Address refund obligations explicitly
If you are the paying party, include language requiring refund of unearned prepayments upon force majeure termination. Courts will not imply this right.Add a business continuity obligation
Require the invoking party to maintain a business continuity plan and document their mitigation efforts. This prevents lazy invocations of the clause.Include supply chain language
For manufacturing, distribution, or import/export contracts, add specific language covering supplier failures, port closures, and transportation disruptions.Related Terms
Frequently Asked Questions
What qualifies as a force majeure event?
Qualifying events are listed in the contract and must be unforeseeable at signing, beyond the party's control, and the direct cause of non-performance. Common categories include natural disasters, war, terrorism, government actions, and - in modern contracts - pandemics and supply chain failures.
Does force majeure excuse non-payment?
Generally no. Most US courts hold that force majeure does not excuse simple payment obligations. The clause is intended for performance duties that are physically impossible to complete. If you want it to cover payment timing, you must explicitly say so in the clause.
What is the difference between force majeure and commercial impracticability?
Force majeure is a contractual provision - it only applies if written into the contract. Commercial impracticability (UCC §2-615) is a legal doctrine that may apply to goods contracts without a force majeure clause, but courts apply it very narrowly and it rarely succeeds.
Did force majeure clauses work during COVID-19?
Mixed results. Parties who could show COVID-19 directly prevented performance - such as venues legally ordered to close - generally succeeded. Parties claiming general economic hardship or reduced demand largely failed. The specific clause language and the direct link between the event and the non-performance were decisive.
Do I need to send a notice to invoke force majeure?
Almost always yes. Force majeure clauses typically require prompt written notice - usually 3-10 business days from the triggering event. The notice must describe the event and explain how it affects performance. Failure to give timely notice can waive your right to invoke the clause entirely.