Force Majeure Clause Guide: What It Covers and What It Doesn't
What Force Majeure Actually Covers
A force majeure clause excuses performance when extraordinary events beyond either party's control make performance impossible or commercially impracticable. Standard triggers: acts of God (earthquakes, floods, fires), war, terrorism, pandemics/epidemics, government actions (sanctions, lockdowns), strikes, and utility failures. "Heavy rain" or "tight deadlines" are NOT force majeure.
Post-COVID Lessons
Before 2020, most force majeure clauses did NOT include "pandemic" or "epidemic." During COVID, parties with generic "act of God" language fought in court while those with explicit "pandemic" language were protected. Lesson: be specific. Add: "epidemic, pandemic, public health emergency, government-imposed lockdown or quarantine."
What Most Force Majeure Clauses Miss
1. Supply chain failures: "Inability to obtain materials or services from suppliers due to force majeure events." 2. Cyber attacks: "Ransomware attack, DDoS attack, or critical infrastructure cyber incident." In 2026, this is more likely than a flood. 3. Utility/service failures: "Failure of electricity, internet connectivity, or cloud hosting services lasting more than 24 hours." 4. Notice requirement: "Party invoking force majeure must notify the other within 5 business days with specific details of the event and expected duration."
Force Majeure vs Impossibility vs Frustration of Purpose
Force majeure = contract clause that excuses performance. Impossibility = common law doctrine — performance literally impossible (unique subject matter destroyed). Frustration of purpose = performance possible but pointless (renting a stadium for a parade that gets banned). A well-written force majeure clause is better than relying on common law doctrines, which courts interpret narrowly.
Drafting Checklist
- List specific events (pandemic, cyber attack, supply chain, utility failure) — not just "acts of God"
- Require written notice within X days with event details
- Specify: suspended performance, not terminated — both parties reconvene after the event
- Add: if force majeure continues beyond 30/60/90 days, either party may terminate without penalty
- Payment obligations for work already completed survive force majeure
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