You have signed the contract. Deliverables are defined, timelines are set, and both parties are ready to perform. Then something extraordinary happens — something entirely outside anyone’s control — and performance becomes impossible. What happens next?

The answer lies in one of the most important — and most misunderstood — provisions in commercial contracts: the force majeure clause. Once dismissed as boilerplate tucked away in the back pages of agreements, force majeure has emerged as a front-and-centre legal concept for executives, project managers, procurement professionals, and operations teams worldwide.

Whether you manage vendor contracts, oversee infrastructure projects, run statements of work, or negotiate service agreements, understanding force majeure is no longer optional. It is essential risk management.

Section 01Foundation — What Is Force Majeure?

Origin and Meaning

The term force majeure comes from French, meaning “superior force.” It has roots in Napoleonic law and the French Civil Code, which recognised that certain extraordinary external events could legitimately excuse a party from performing their contractual obligations. From France, the concept spread through civil law jurisdictions globally and was eventually absorbed — in modified form — into common law systems such as those of the United Kingdom, the United States, Singapore, Australia, and others.

At its core, force majeure is a contractual provision — or in some jurisdictions, a legal doctrine — that excuses one or both parties from their obligations when an extraordinary event beyond their control makes performance impossible, illegal, or radically different from what was agreed.

Force Majeure vs. Breach of Contract

It is critical to understand what force majeure is not. It is not a mechanism to escape obligations simply because performance has become difficult, more expensive, or commercially inconvenient. That would be a breach of contract. Force majeure applies only when a qualifying extraordinary event has directly caused the inability to perform — and even then, only under specific conditions.

Consider the difference: a supplier who cannot deliver because commodity prices have risen significantly has no force majeure claim. A supplier who cannot deliver because a government has suddenly closed all ports of entry may well have one. The distinction is not the severity of the disruption — it is the nature and cause of it.

Common Law vs. Civil Law Treatment

How force majeure operates depends significantly on which legal system governs your contract:

The Three Pillars Courts Look For

Regardless of jurisdiction, courts and arbitrators consistently look for three core elements when evaluating a force majeure claim:

• Unforeseeability: The event must have been unforeseeable at the time the contract was signed. If the risk was known — or should reasonably have been anticipated — it typically cannot support an FM claim.
• Externality: The event must be external to both parties. An internal failure — a manufacturing defect, a staffing shortage due to poor planning, or a financial difficulty — does not qualify.
• Impossibility: In most jurisdictions and contracts, force majeure requires that performance be impossible, not simply more difficult or more expensive. This is the most frequently litigated element.

Section 02Why Force Majeure Is More Relevant Than Ever

Force majeure provisions were once considered standard contract boilerplate — language that lawyers inserted as a formality and business teams barely read. That perception has fundamentally changed. Several converging developments have elevated the importance of FM in modern commercial life.

The COVID-19 Pandemic: The Largest Stress Test in Modern Contract History

The COVID-19 pandemic was, arguably, the single most consequential force majeure event of the modern era. Across every industry and every jurisdiction, businesses found themselves unable to perform — and rushing to review their contracts for protection. What they discovered was sobering:

• Contracts with broadly drafted FM clauses that explicitly included ‘pandemics,’ ‘epidemics,’ or ‘government-mandated restrictions’ generally fared well.
• Contracts that listed only ‘acts of God,’ ‘war,’ or ‘natural disasters’ — without mentioning public health emergencies — often failed to qualify, leaving parties exposed.
• Many businesses discovered their contracts had notice requirements they had failed to comply with, invalidating otherwise legitimate claims.
• Courts in numerous jurisdictions ruled that government lockdowns could qualify as force majeure, but only where the clause language was sufficiently broad.

Climate Volatility and Natural Disasters

Extreme weather events — floods, wildfires, hurricanes, droughts, and ice storms — are increasing in both frequency and severity. These events are disrupting supply chains, halting construction projects, forcing facility closures, and making transportation routes impassable. For project-based businesses and supply chains with tight tolerances, these events create real force majeure exposure. Contracts must now explicitly address climate-related events — particularly as some courts have begun questioning whether such events remain ‘unforeseeable’ in climate-vulnerable regions.

Cyberattacks and Digital Infrastructure Failures

Cyber incidents — ransomware attacks, state-sponsored intrusions, and critical infrastructure failures — have become a genuine and recurring threat to business operations. A successful ransomware attack can render a company entirely unable to perform: order management systems go dark, manufacturing lines halt, and communications break down.

Most legacy FM clauses make no mention of cyber events. This is an increasingly significant gap — particularly in IT service agreements, SOWs, and logistics contracts where system uptime is central to performance.

Government-Imposed Regulatory Changes

Governments can — and do — impose sudden regulatory changes, import or export restrictions, sanctions, and licensing requirements that make existing contractual obligations impossible or illegal to fulfil. Where the FM clause includes language such as ‘acts of government,’ ‘regulatory changes,’ or ‘change in law,’ the answer is often yes. Where it does not, recovery may be limited.

Supply Chain Fragility in a Globalised World

Modern supply chains are long, interdependent, and geographically dispersed. A single disruption can cascade through multiple tiers of supply and make contractual performance impossible for parties far removed from the original event. Businesses today need to think about FM exposure not just in their own contracts, but across their entire supply chain — including the contracts their key suppliers hold with their own suppliers.

Section 03The Law — What Makes a Valid Force Majeure Claim?

The Specific Language Test

In common law jurisdictions, force majeure clauses are interpreted strictly and narrowly. Courts do not give parties the benefit of the doubt — they look at the specific language used in the clause and ask whether the event that occurred falls within its literal scope. A clause that lists ‘floods, earthquakes, and acts of God’ will not automatically cover a government shutdown or a cyber incident.

Enumerated Events vs. Catch-All Clauses

Force majeure clauses typically take one of three structures:

• Exhaustive list: Only the events specifically named will qualify. Offers certainty but is dangerously narrow.
• List plus catch-all: Named events followed by a phrase such as “or any other event beyond the reasonable control of the affected party.” This is the most common structure in modern commercial contracts.
• General clause only: A broad statement without specific events. Offers flexibility but creates significant uncertainty.

The Causation Requirement

Even where a qualifying event exists, force majeure typically requires a direct and proximate causal link between that event and the party’s inability to perform. It is not enough that an FM event occurred — you must demonstrate that the event directly caused your non-performance. If a company could have performed through alternative means, courts may find that the event did not truly prevent performance.

Economic Hardship Is Not Enough

This is perhaps the most common and costly misconception about force majeure: that a sharp increase in costs, a collapse in profit margins, or an economically unsustainable contract qualifies for FM relief. It does not. Force majeure requires impossibility or near-impossibility, not commercial difficulty. A construction company that finds its material costs have doubled does not have a force majeure claim simply because the project is no longer profitable.

The Notice Requirement — The Most Commonly Missed Trap

Most force majeure clauses include a notice requirement: the affected party must notify the other party of the FM event within a specified timeframe — typically 10 to 30 days from when the event occurred or became known. Failing to provide timely notice — even where the underlying FM event is entirely valid — can result in the loss of all FM protections.

The Mitigation Obligation

Force majeure does not excuse a party from attempting to perform. Before invoking FM relief, the affected party must take reasonable steps to mitigate the impact of the event and fulfil its obligations through alternative means. Only when reasonable mitigation is insufficient to enable performance can FM be validly claimed. Document all mitigation efforts carefully — these records become critical evidence in any subsequent dispute.

Suspension vs. Termination

Most FM clauses do not immediately terminate the contract — they suspend performance obligations for the duration of the FM event. Once the event passes, obligations resume. However, where an FM event is prolonged beyond a specified period (the ‘long-stop date’), either party may typically terminate the contract without penalty.

Section 04Business Applications — When Does FM Apply in Your Context?

Force majeure operates in your specific contract and industry context. Here is how it plays out across the most common commercial scenarios:

Supply Contracts and Procurement

Supply contracts are among the most frequently affected by FM events. When a supplier invokes FM, buyers face a difficult situation: they lose their supply, they typically cannot claim damages, and they may need to find alternative sources urgently. Buyers should immediately request documentation of the qualifying event and verify its direct causal link to non-performance. Invalid FM invocations by suppliers are not uncommon — they are sometimes used to exit unprofitable contracts.

Construction and Infrastructure Projects

FM in construction contracts can affect delivery timelines, milestone payments, cost allocations, and penalty provisions. Standard construction contract frameworks — such as FIDIC, NEC, and JCT — all include FM or equivalent provisions, each with distinct mechanisms. In many standard forms, the contractor receives time relief but not cost recovery for neutral FM events — meaning both parties share the loss. Always ensure construction contracts explicitly define the scope of FM events, notice periods, and the allocation of delay costs.

Statements of Work (SOW) and IT / Professional Services

SOWs and IT service contracts present unique FM challenges. Delivery milestones, system availability obligations, and resource commitments are often time-sensitive. There is a critical tension: many service agreements include SLAs and uptime guarantees with liquidated damages for breach. FM clauses in these contracts must be carefully drafted to delineate which obligations are FM-excusable and which are absolute — regardless of external events. Ensure your SOW FM clause explicitly covers cyber incidents, infrastructure failures, and regulatory restrictions, and clarify whether SLA credits are suspended during an FM event.

Operations and Manufacturing

For operational and manufacturing businesses, FM events can mean plant shutdowns, energy supply disruptions, and critical equipment failures caused by external events. Operational FM planning should include scenario analysis identifying which external events could halt operations, and whether existing contracts provide adequate protection for each scenario.

Logistics and Shipping

Port closures, route disruptions, carrier withdrawal, and extreme weather affecting transit are well-established FM scenarios in logistics. For businesses with complex logistics networks, review FM provisions across the entire logistics chain — including warehousing agreements, carrier contracts, and customs brokerage arrangements — to identify gaps or conflicting provisions.

Real Estate and Lease Agreements

Leases are generally resistant to force majeure claims. Courts have typically held that commercial tenants cannot invoke FM to avoid rent payment obligations — economic difficulty does not constitute impossibility, and the purpose of the lease is not necessarily frustrated. FM may be relevant in leases for temporary closure obligations, fit-out delivery timelines, or service provision by the landlord.

Events, Hospitality, and Sponsorship Contracts

Events contracts are highly susceptible to force majeure — but only when the qualifying event directly prevents the event from occurring. A general downturn in consumer confidence or a change in audience preferences will not qualify. Government-mandated prohibition of gatherings or a major natural disaster affecting the venue are more likely candidates.

Government and Public Sector Contracts

Government contracts often operate under different rules. Sovereign immunity, statutory provisions, and public procurement regulations may override standard contract FM provisions. Contractors may face more stringent notice and evidence requirements when claiming FM against a government entity.

Section 05What Force Majeure Does NOT Cover — Common Myths and Costly Mistakes

Price Increases and Economic Hardship

The single most common force majeure misconception is the belief that a dramatic increase in costs qualifies for FM relief. Courts have consistently rejected this argument, holding that commercial risk allocation is a fundamental purpose of the contract itself. By agreeing to a fixed price, a party assumes the risk that costs may change. The correct mechanism for addressing economic hardship is a hardship clause — a separate provision that allows parties to renegotiate when performance becomes excessively burdensome.

FM Is Not Implied in Common Law Jurisdictions

Many business professionals assume that some basic level of FM protection exists as a matter of law. In common law jurisdictions, this assumption is incorrect. The doctrine of frustration (in UK and Commonwealth law) or impossibility (in US law) may provide a remedy in extreme cases, but requires a very high threshold — typically that the event has completely destroyed the commercial purpose of the contract.

Foreseeability Is the Most Litigated Question

A force majeure event must have been unforeseeable at the time the contract was signed. This has become one of the most contested elements in FM litigation. Businesses operating in industries or regions known to be subject to certain types of disruption may face challenges arguing unforeseeability. The time of contract execution is the relevant reference point.

Related but Distinct Legal Doctrines

When force majeure is not available, parties may explore related doctrines:

• Frustration of purpose (UK/Commonwealth): The contract may be discharged where an unforeseen event makes performance radically different from what was agreed — even if not strictly impossible. Courts apply this sparingly.
• Commercial impracticability (US): Performance may be excused where an unforeseen event makes it commercially impracticable. Requires showing the event was unforeseeable and the party did not assume the risk.
• Hardship clauses: A contractual mechanism (not a general legal doctrine) allowing parties to renegotiate when performance has become excessively onerous.
• Material Adverse Change (MAC) clauses: Common in M&A and financing contracts, allowing a party to exit or renegotiate where a material adverse change has occurred.

Section 06How to Invoke Force Majeure Correctly — A Step-by-Step Guide

Invoking force majeure correctly is as important as having a valid claim. Procedural errors — particularly around notice — can void an otherwise legitimate FM claim. Follow these steps carefully:

1. Read your contract clause carefully and in full. Identify exactly which events are covered, what causal link is required, how notice must be given, to whom, in what form, and within what timeframe. Every word matters.
2. Establish that a qualifying FM event has occurred and directly caused your inability to perform. Document the event and the specific performance obligations it has affected. Generic claims of disruption are insufficient.
3. Send formal written notice strictly within the contractually required timeframe. This is typically 10 to 30 days from the occurrence of the FM event. Late notice can forfeit your entire FM protection.
4. Document all mitigation efforts contemporaneously. Record every step taken to attempt to perform or reduce the impact of the FM event. This contemporaneous record is your most important evidence if a dispute arises.
5. Maintain structured, written communication with the counterparty throughout the FM period. Provide regular updates on the status of the event and your efforts to resume performance. Silence can be used against you.
6. Clarify whether the FM clause suspends or terminates the contract, and whether a long-stop date applies. If suspension is approaching the long-stop period, both parties need to decide whether to extend, renegotiate, or activate termination rights.
7. Engage legal counsel before sending any FM notice. The wording of the notice can significantly affect your legal position. An improperly worded notice can inadvertently waive rights or fail to satisfy contractual requirements.

Section 07How to Draft Strong Force Majeure Clauses

Post-pandemic contract drafting has changed permanently. Force majeure provisions are now among the most carefully negotiated clauses in major commercial agreements. Here is what current best practice looks like:

What to Explicitly Include

• Pandemics, epidemics, and public health emergencies
• Natural disasters: floods, earthquakes, wildfires, hurricanes, extreme weather events
• Acts of God
• Government acts: lockdowns, regulatory restrictions, change in law, import/export restrictions, sanctions
• Cyberattacks, ransomware, and critical digital infrastructure failures
• Supply chain collapse affecting materials or services essential to performance
• Labour disputes and industrial action beyond the party’s reasonable control
• Infrastructure failures: power grid, communications, transport networks

What to Explicitly Exclude

• General economic downturns, inflation, or unfavourable market conditions
• Foreseeable price volatility in commodities or currencies
• Internal operational failures, staffing shortages due to poor planning, or management decisions
• Payment obligations (consider carving these out explicitly)
• Events that occurred before the contract was signed

Critical Structural Elements

• Notice provisions: Define the timeframe (recommend 10 to 14 days), the form (written, to a named role), and the required content (description of event, anticipated duration, affected obligations).
• Long-stop date: Include a termination right after a specified period of FM suspension — typically 30, 60, or 90 days — to prevent indefinite suspension.
• Mitigation obligation: Explicitly require the affected party to take reasonable steps to mitigate and to keep the other party informed.
• Cost allocation during FM: Specify clearly who bears standing costs during the FM suspension period.
• Governing law: In cross-border contracts, specify clearly which law governs the FM clause — as force majeure operates very differently across jurisdictions.

Section 08Strategic Checklist for Businesses — What to Do Right Now

Before You Invoke Force Majeure — Think Carefully

Invoking force majeure is a significant commercial decision, not just a legal one. Even a valid FM claim can permanently damage a business relationship. Before invoking FM, consider whether commercial renegotiation would preserve the relationship better than a formal FM invocation. Explore whether a price adjustment, extended timeline, or partial delivery could resolve the issue. When you do decide to invoke FM, act promptly, communicate clearly, document everything, and involve legal counsel from the outset.

Section 09FAQ — The 6 Most Common Business Questions on Force Majeure