Force majeure is a contract clause that excuses a party from performing its obligations when an extraordinary event, named in the clause, makes performance impossible. The phrase is French for “superior force,” and in the United States it is purely a creature of contract: if your agreement doesn’t include a force majeure provision, you don’t have the protection, and if the clause’s words don’t cover the specific event disrupting you, courts generally won’t stretch them to help.1World Bank Group. Force Majeure Checklist
That is the short answer. The longer answer is about which events qualify, what the clause has to say, and what you actually have to do when something goes wrong.
The Three Elements of a Qualifying Event
Across legal systems, three features define a true force majeure event. The event must be external, meaning it originates entirely outside the control of the party claiming relief. It must be unforeseeable, meaning it isn’t the kind of risk the parties should have planned for when they signed. And it must be irresistible, meaning performance has become genuinely impossible rather than just harder or more expensive.1World Bank Group. Force Majeure Checklist
The last point is where most claims die. Financial hardship on its own almost never qualifies. A contractor who finds that lumber prices tripled cannot invoke force majeure just because the project turned unprofitable. The question is whether performance is possible at all, not whether it still makes economic sense.
Why the Exact Wording of the Clause Controls
Courts in the United States read force majeure clauses strictly. If the event disrupting you isn’t covered by the clause’s language, the result is the same whether the disruption was catastrophic or minor: no relief. A clause that lists “earthquakes, hurricanes, and floods” won’t necessarily cover a wildfire or a volcanic eruption unless the drafters added a broader phrase to catch what the list missed.
Many clauses close with a catch-all like “any other event beyond the reasonable control of the parties.” Courts apply a principle called ejusdem generis to these phrases, limiting the catch-all to events of the same general type as the specific ones listed. A catch-all tucked onto a list of natural disasters probably won’t reach a labor strike, because a strike isn’t like an earthquake.
The burden sits on the party seeking to escape the contract. You have to show that the event occurred, that it falls inside the clause’s language, and that it directly caused your inability to perform. Force majeure is treated as an affirmative defense in litigation, which means a party that fails to raise it in its initial filings can lose the right to raise it later.
Events Typically Covered
Most clauses sort qualifying events into two groups. Natural events: earthquakes, floods, hurricanes, tsunamis, volcanic eruptions, and similar occurrences without human cause. Well-drafted clauses sometimes set a threshold, such as requiring an official emergency declaration, so an ordinary storm doesn’t become an excuse for a missed deadline.
The second group covers human-caused disruptions: war, terrorism, civil unrest, sanctions, embargoes, and labor strikes. Government action belongs here too, and it deserves attention of its own. A new regulation, an export restriction, or a quarantine order can qualify, but only if the clause explicitly contemplates government action and the order directly prevents performance.
What COVID-19 Changed
Before 2020, few contracts specifically mentioned epidemics or pandemics. Contracts drafted after the pandemic routinely include “epidemic,” “pandemic,” “quarantine,” and “government measures interrupting performance.” That last phrase matters more than it looks. During COVID-19 litigation, courts often found that the virus itself didn’t prevent performance; government shutdown orders did. A New York court sided with an art auction house whose clause covered both the pandemic and the government response. A Virginia court rejected a movie theater’s defense because its clause contemplated physical damage, not closure orders. A New Jersey court found that a campground’s clause didn’t mention government acts, so an executive order closing the site didn’t trigger relief. The pattern across these cases was simple: courts enforced what the clauses said, nothing more.
How to Invoke the Clause
A qualifying event doesn’t excuse you automatically. The clause almost always imposes procedural steps, and missing them can forfeit the protection even when the event itself clearly qualifies.
Notice
Most contracts require written notice to the other party within a specified window after the event, often between 24 and 72 hours. Blow the deadline and you can waive the defense entirely. The safest move is to send notice the moment you recognize the event will affect performance.
Follow whatever delivery method the contract specifies, whether certified mail or a designated portal. If the contract is silent, email creates a usable paper trail; sending through multiple channels removes any argument about proper delivery. Federal law provides that electronic records and signatures cannot be denied legal effect solely because they are electronic, as long as they can be retained and accurately reproduced.2Office of the Law Revision Counsel. 15 US Code 7001 – General Rule of Validity
Evidence
You will need to document both the event and the way it prevented performance. Government reports, emergency declarations, news coverage, and third-party assessments all help. Vague assertions that circumstances became difficult will not carry a case.
Mitigation
You are expected to take reasonable steps to find another way through. If a shipping route is closed, look at alternatives. If a supplier fails, look for a replacement. Courts will not excuse nonperformance when a reasonable workaround existed and you did not pursue it. The effort does not have to succeed, but you need to show you made it.
What Relief Looks Like
Succeeding on a force majeure claim does not erase the contract. The usual result is a pause: your deadline is pushed back for the duration of the event, and you resume within a reasonable time once it ends. What counts as reasonable depends on the type of obligation and the severity of the disruption.
If the event drags on past a specified period, often 60 to 90 days, many clauses let either party terminate without liquidated damages or penalties. Some clauses give that right to only one side, and some require a second notice before termination takes effect. Read the exact language.
Work already completed before the event still has to be paid for. Many clauses say so explicitly, and even when they are silent, courts generally will not let one party keep the benefit of completed work without paying.
If Your Contract Has No Force Majeure Clause
You are not entirely out of options, but the paths that remain are harder to use and less predictable than a well-drafted clause.
Impossibility and Impracticability
The impossibility doctrine excuses performance when an unforeseen event makes it genuinely impossible to do what you promised. Despite the name, courts don’t require literal impossibility. The modern test is impracticability: performance must involve extreme and unreasonable difficulty or expense that the parties did not anticipate. Inconvenience or reduced profit does not qualify, the event must have been unforeseeable, and the party claiming relief cannot have caused it.
For contracts involving the sale of goods, Section 2-615 of the Uniform Commercial Code provides a statutory framework. A seller’s failure to deliver is not a breach if performance was made impracticable by an event the parties assumed would not occur, or by compliance with a government regulation or order.3Legal Information Institute. UCC 2-615 Excuse by Failure of Presupposed Conditions
Frustration of Purpose
Frustration of purpose works differently. You can still physically perform, but an unforeseen event has destroyed the entire reason the contract existed. The textbook example is renting a room to watch a parade that gets canceled: the rental is still possible, but there is no longer any point. Both parties must have understood the contract’s purpose, and the frustrating event must have been unforeseeable.
These doctrines are a safety net, not a first choice. Courts apply them reluctantly, which is precisely why a clearly written clause matters.
What Force Majeure Is Not
Two confusions come up often enough to be worth clearing up.
Force majeure is not the same as a hardship clause. Force majeure addresses impossibility; hardship addresses situations where performance is still possible but the economic balance of the deal has been fundamentally disrupted.4International Chamber of Commerce. ICC Force Majeure and Hardship Clauses A successful force majeure claim relieves you from performing. A successful hardship claim lets you renegotiate, and in some cases lets a court or arbitrator adapt the contract. International contracts often include both; domestic U.S. contracts less often do, which is a gap worth raising in negotiation.
Force majeure is also not business interruption insurance. The clause excuses contractual obligations; insurance compensates for financial loss. Most business interruption policies require physical damage to property as a trigger and will not cover pandemics, government orders, or supply chain breakdowns unless the policy says so.
What to Look For When Signing or Drafting
If you are negotiating a contract, the force majeure clause rewards real attention rather than a quick skim.
- Name the events most likely to affect your deal (natural disasters, pandemics, government orders, sanctions, cyberattacks, supply chain failures), then add a catch-all like “any other event beyond the reasonable control of the affected party.” The specific list gives certainty; the catch-all gives flexibility within the limits ejusdem generis will allow.
- Address government action in its own words. The disruption often comes from the official response, not the underlying event.
- Define the notice requirement: how fast, in what form, with what content. Ambiguity here produces litigation.
- Require reasonable mitigation. It protects both sides and tracks what courts already expect.
- Set a point at which prolonged disruption lets either party terminate, so no one is stuck in limbo.
- Spell out what happens to work already performed and payments already owed.
- Consider pairing the clause with a hardship provision if a severe cost swing could sink the deal short of impossibility.
The gap between a clause that protects you and one that does not usually comes down to specificity. Boilerplate written twenty years ago will not reflect pandemics, cyberattacks, or sweeping regulatory shifts. Review the clause against the actual deal in front of you, every time.