Force Majeure Clauses in Contracts: What They Mean and When They Apply

You've seen the phrase in contracts for years. After 2020, everyone suddenly knew what force majeure meant. But despite its elevated profile, force majeure clauses are still widely misunderstood — and poorly drafted versions have cost businesses millions in disputed obligations.

Here's a practical guide to what force majeure clauses actually do, where they fall short, and what to look for before you sign a contract that includes one.

What Force Majeure Means

"Force majeure" comes from French for "superior force." In contract law, it's a provision that excuses one or both parties from performing contractual obligations when an extraordinary event beyond their control makes performance impossible, impractical, or illegal.

The critical elements courts look for:

The event was beyond the party's reasonable control
The event was not foreseeable when the contract was signed
The event directly caused the failure to perform
The affected party could not have mitigated or worked around the event

All four elements typically need to be present. A party who could have performed but chose not to — even during a crisis — usually can't invoke force majeure.

What Typically Qualifies

Most force majeure clauses list specific triggering events. Common categories:

"Acts of God" — Natural disasters: earthquakes, floods, hurricanes, tornadoes, lightning strikes
War and armed conflict — Declared war, invasion, terrorism, civil war, riots
Government action — Laws, regulations, embargoes, government-mandated shutdowns
Strikes and labor disputes — Though some contracts explicitly exclude strikes at the affected party's own facility
Pandemics and epidemics — Many contracts now explicitly include these post-2020; older contracts often didn't
Fire — When not caused by the party's own negligence

What Does NOT Qualify

Force majeure is frequently invoked and frequently denied. Courts have rejected it for:

Economic hardship — A bad market, rising costs, or loss of a customer doesn't excuse performance. Courts are reluctant to let parties escape contracts simply because they became unprofitable.
Supply chain disruptions — Unless the contract specifically lists "supply chain disruption" as a triggering event, most courts treat this as ordinary business risk.
Foreseeable events — If the event was a known risk when you signed, you assumed that risk. A construction company signing a contract in hurricane season in Florida can't claim force majeure for a hurricane.
Partial difficulty — Performance being harder, more expensive, or less profitable generally doesn't meet the threshold. Courts typically require impossibility or near-impossibility.
The party's own actions — You can't create the force majeure event and then invoke it.

The Causation Requirement

Even if a qualifying event occurred, the party must show it directly caused the failure to perform. Courts look at whether the event made performance impossible, not just inconvenient.

A supplier whose warehouse flooded and destroyed inventory has a strong force majeure claim. A supplier who could have sourced materials from an alternative vendor but chose not to does not — the flood didn't cause the failure to deliver; the decision not to mitigate did.

Notice Requirements

Most force majeure clauses include a notice requirement: the party invoking force majeure must notify the other party within a specified time period (often 5, 10, or 30 days) of learning about the event. Failing to give timely notice often waives the force majeure defense, even if the underlying event would have qualified.

Before invoking force majeure:

Check the notice deadline in the contract
Send written notice immediately — certified mail and email
Document the event and its impact on performance
Continue all mitigation efforts you can reasonably take

What Happens When Force Majeure Applies

Invoking force majeure doesn't usually terminate a contract — it typically suspends the obligation to perform for the duration of the event. Once the force majeure event ends, the obligation resumes.

However, if the force majeure event continues beyond a specified period (often 30, 60, or 90 days), most clauses give one or both parties the right to terminate the contract entirely, often without liability for the delay.

Payment obligations are frequently carved out: force majeure typically excuses performance obligations but not obligations to pay money already owed. If you owe your supplier $50,000 for goods already delivered, a force majeure event doesn't excuse that payment.

Drafting Checklist: What to Look for Before Signing

When reviewing a contract's force majeure clause:

☐ Is the triggering list specific or catch-all? "Including but not limited to" gives broader protection than an exhaustive list.
☐ Does it include pandemics, government shutdowns, and supply chain disruptions? These are now considered standard after 2020.
☐ What's the notice deadline? Is 5 days realistic for your operations?
☐ How long before termination rights arise? 30 days is short; 90 days is more protective for complex projects.
☐ Are payment obligations excluded? Standard, but worth confirming.
☐ Does it require mitigation? Nearly all do — make sure you can realistically comply.
☐ Is it mutual? Both parties should have equal force majeure rights.

AI-Assisted Contract Review

For legal teams and businesses reviewing high volumes of contracts, AI tools can identify and extract force majeure clauses — along with notice deadlines, triggering event lists, and termination triggers — automatically from PDF contracts. Tools like LegalDocPro parse contracts and surface key clause language as structured data, making it easier to flag non-standard terms before they become costly disputes.