A force majeure clause in a contract lets one or both parties suspend or end their obligations when an extraordinary outside event makes performance impossible. The phrase is French for “superior force,” and the protection it offers is entirely a creature of the contract itself. American common law has no standalone force majeure doctrine, so if the clause is not written into your agreement, you cannot invoke one no matter how severe the disruption.
The Clause Is the Whole Rule
Force majeure is not a background rule that applies to every contract. It is a provision the parties negotiate and write in. Courts treat the clause as the private law between the parties, giving it effect based on what it actually says rather than importing outside standards. That means the specific events listed matter enormously. A clause covering “natural disasters, war, and government shutdowns” will not protect you from a cyberattack or a pandemic unless the language is broad enough to reach those events. Vague catch-alls like “any event beyond reasonable control” sometimes help, but courts in many jurisdictions read them narrowly and refuse to enforce open-ended language without some connection to the events specifically listed.
What Qualifies as a Force Majeure Event
Natural Disasters and Acts of God
Earthquakes, hurricanes, floods, wildfires, and similar natural catastrophes are the classic triggers. Courts often call these “Acts of God” because they originate entirely outside human control. Most commercial contracts list specific natural events so there is no argument about what counts. Insurance policies often mirror these categories when defining business interruption coverage, so the two documents should be reviewed together to avoid gaps.
War, Civil Unrest, and Government Action
Human-caused disruptions form a second major category. Declared and undeclared wars, large-scale riots, terrorism, and embargoes commonly appear in force majeure clauses. Government actions deserve special attention because they come up so often: regulatory shutdowns, travel bans, executive orders closing businesses, and new legislation that makes performance illegal can all trigger the clause if the contract covers them. The COVID-19 pandemic tested this category directly. Courts around the country generally held that pandemic-related government orders could qualify, but only where the clause specifically mentioned pandemics, epidemics, government orders, or at least natural disasters phrased broadly enough to encompass a public health crisis.
Cyberattacks and Digital Disruptions
Ransomware, distributed denial-of-service attacks, and major infrastructure failures are increasingly written into force majeure clauses. A digital disruption does not qualify unless the contract specifically identifies it. Even when a cyber event is listed, three conditions typically apply: the attack must have been beyond the affected party’s reasonable control, it must have actually prevented performance rather than merely inconvenienced it, and the affected party must have taken reasonable steps to prevent or recover from it. That third requirement creates tension with disaster-recovery obligations and service-level agreements, so technology contracts need careful coordination between the force majeure clause and the operational commitments elsewhere in the deal.
What Doesn’t Qualify
Financial difficulty is the most common failed justification. A contract becoming more expensive to perform, a currency dropping in value, raw materials costing more than expected, or a customer base shrinking does not excuse performance. Courts consistently hold that market fluctuations and economic downturns are foreseeable business risks the parties are expected to absorb. Price increases, tariffs, supply-chain cost spikes, and labor shortages are problems that parties can address at the time of contracting through escalation clauses, price-adjustment mechanisms, or contingency planning. They are not force majeure events.
The general standard is that performance must be truly prevented or rendered impossible by the outside event, not merely made harder or less profitable. A construction company facing doubled lumber prices after a hurricane still has to build the building. A shipping company that can reroute goods through a longer, more expensive path cannot claim force majeure just because the shorter route is blocked. Inconvenience and added cost are not enough.
What You Have to Prove
Pointing at a disaster on the news is not a claim. The party seeking relief has to satisfy several requirements, and failing any one of them sinks the defense.
- The event must be unforeseeable. At the time the contract was signed, a reasonable person could not have predicted the specific disruption. If the risk was known or probable, the parties were expected to handle it through other contract mechanisms. An earthquake in a seismically active region may not qualify as unforeseeable depending on how the clause is written.
- The event must be beyond your control. You cannot have caused, contributed to, or worsened the situation through your own actions or negligence. This eliminates self-inflicted problems dressed up as external forces.
- The event must actually prevent performance. There has to be a direct causal link between the event and your inability to perform. The legal threshold generally requires impossibility or extreme impracticability, not just inconvenience. The Restatement (Second) of Contracts captures the standard: a party’s duty is discharged when performance becomes impracticable through no fault of their own due to an event whose non-occurrence was a basic assumption of the contract.
The party claiming force majeure carries the full burden on every element. You must show that a qualifying event occurred, that it directly caused your failure to perform, and that you could not have avoided or worked around the problem. Courts treat this as an affirmative defense, so the other side does not have to disprove anything until you have built the case. Many force majeure disputes turn on causation rather than whether a disaster happened. Everyone knows there was a hurricane. The question is whether the hurricane actually prevented this particular party from performing this particular obligation. A supplier 500 miles from the hurricane zone faces a steep uphill battle even if some portion of the supply chain was disrupted.
The Duty to Mitigate
Invoking force majeure does not entitle you to sit back and wait for the disruption to resolve itself. Nearly every clause requires the claiming party to take reasonable steps to reduce the impact of the event on their contractual obligations. If alternative suppliers exist, you need to pursue them. If partial performance is possible, you need to deliver what you can. If the disruption affects only one component of a larger obligation, the unaffected portions still need to get done.
Failing to mitigate can destroy an otherwise valid claim. Courts compare what the party actually did after the event to what a reasonable party in the same position would have done. Document every mitigation step as you take it. If you eventually need to prove your case, you will need a clear record of the alternatives you explored, the efforts you made, and why certain workarounds were not feasible.
Notice and Documentation
Nearly every force majeure clause requires the affected party to notify the other side within a specified window after the disruption begins. Deadlines vary widely. Real-world clauses run from five business days to thirty days, with seven to fifteen days common in commercial agreements. Missing the deadline can forfeit the defense entirely, regardless of how legitimate the underlying disruption is.
Form matters too. Most clauses require written notice delivered through a method that creates a verifiable record. Beyond the initial notice, the claiming party typically must provide supporting documentation: copies of government orders, meteorological reports, correspondence showing the disruption’s impact on performance, and evidence of mitigation efforts. Periodic updates as the situation develops are wise, especially when it is unclear exactly when the disruption began to affect the contract. A claim filed weeks after the fact with no contemporaneous documentation is far easier to challenge than one backed by a real-time paper trail.
How Courts Read These Clauses
Courts in most jurisdictions interpret force majeure clauses narrowly. If the specific event is not mentioned, many courts will refuse to excuse performance even when the event was genuinely unforeseeable and devastating. New York courts are a well-known example of this strict approach, requiring the specific disruption to match the clause language rather than falling within some broad category of things that could go wrong.
Catch-all phrases like “including but not limited to” or “any event beyond reasonable control” sometimes extend a clause beyond its enumerated list, but courts are skeptical. Several have rejected force majeure defenses built on vague catch-alls, particularly where the real driver of non-performance was economic pressure rather than physical or legal impossibility. Broad language is not a safety net. Contracts should specifically name the types of events the parties want covered, including pandemics, cyberattacks, government orders, and supply-chain disruptions if those risks are relevant to the deal.
COVID-19 sharpened these principles. Courts generally found that pandemic-related government orders could trigger force majeure clauses, but only where the language was specific enough. The Second Circuit held in one decision that government restrictions on nonessential business activity constituted circumstances beyond reasonable control and excused performance under a clause referencing natural disasters. Other courts refused to extend clauses to COVID-related hardships where the language was too general or where economic pressure rather than the pandemic itself was really driving the non-performance.
What Happens When Force Majeure Applies
Suspension
The most common outcome is a temporary pause. Both parties’ duties freeze until the disruption passes, and neither side is considered in breach during the suspension. Once conditions normalize, the original timeline resumes, though the parties usually need to negotiate adjustments to account for the delay. Well-drafted clauses distinguish between obligations that can simply be delayed, like a monthly deliverable, and obligations that become meaningless if not performed on time, like catering for a specific event.
Termination
When the disruption is permanent or drags on past a specified duration, either party may be able to terminate. If a warehouse is destroyed and cannot be rebuilt within a reasonable timeframe, continuing the agreement makes no sense. Many clauses set a specific trigger, such as the event lasting beyond 90 or 180 days, after which either side can walk away without liability for future obligations.
Partial Performance and Adjusted Terms
If some aspects of the contract remain feasible, the parties may negotiate modified terms rather than full suspension or termination. Delivery schedules might shift, quantities might decrease, or payment terms might change to reflect reduced performance. These modifications generally require good-faith negotiation between the parties, not unilateral action by the claiming side.
Prepayments and Deposits
When a contract is terminated due to force majeure, deposits and prepayments can get contentious. If the clause addresses it, that language controls. If it does not, the common law principle of restitution generally applies: each party is returned to their pre-contract position, prepaid money comes back, and each side absorbs its own out-of-pocket expenses incurred in reliance on the contract. Leaving this issue unaddressed is a common drafting mistake that creates unnecessary disputes.
If Your Contract Has No Force Majeure Clause
You are not entirely without options, but the available defenses are narrower and harder to establish.
For contracts involving the sale of goods, the Uniform Commercial Code provides a statutory excuse that works much like a force majeure clause. Under UCC Section 2-615, a seller’s delay or failure to deliver is not a breach if performance has been made impracticable by an unforeseen event that the parties assumed would not occur when they made the deal. Compliance with a government regulation or order, even one that later turns out to be invalid, also qualifies.1Legal Information Institute. UCC 2-615 Excuse by Failure of Presupposed Conditions Two procedural requirements often trip sellers up: if the disruption only partially affects capacity, the seller must allocate production and deliveries among customers in a fair and reasonable manner, and the seller must promptly notify the buyer of the delay or non-delivery and, if allocation is necessary, the estimated share available. Failing either requirement can eliminate the defense even when the underlying impracticability is genuine. Section 2-615 applies only to sellers; buyers have no direct statutory analog and must rely on the contract or on common law.
Three common law doctrines may also apply, each with a high bar:
- Impossibility. Performance must be objectively impossible, not just difficult. The classic example is a contract to perform at a specific venue that burns down. An unanticipated circumstance has to make performance fundamentally different from what the parties contemplated.
- Impracticability. Closely related to impossibility but slightly broader, this doctrine applies when an unforeseen event makes performance unreasonably burdensome rather than literally impossible. Restatement (Second) of Contracts Section 261 captures it: a party’s duty is discharged when performance becomes impracticable without the party’s fault due to an event whose non-occurrence was a basic assumption of the contract. Even under this more flexible standard, increased cost alone is not enough.
- Frustration of purpose. This applies when the event does not prevent performance but destroys the entire reason for the contract. Under Restatement Section 265, if a party’s principal purpose is substantially frustrated by an event neither party caused, and the contract assumed that event would not occur, the affected party may be discharged. The frustration has to go to the heart of the deal. A hotel room booked to watch a parade that gets cancelled is the textbook example.
All three doctrines share a common thread: courts apply them reluctantly and only when enforcing the contract would produce an outcome fundamentally different from what the parties bargained for. They are safety valves, not escape hatches. A well-drafted force majeure clause is far more reliable because it defines the triggering events, the consequences, and the procedures in advance rather than leaving everything to a court’s discretion after the fact.