Force majeure clause

What is a force majeure clause?

A force majeure clause excuses performance when extraordinary events (natural disasters, wars, pandemics, government actions) make it impossible or impracticable.

The thing that catches people out in common law jurisdictions: there's no default force majeure protection. Unlike civil law systems such as France (Article 1218, Code civil) or Germany (§ 275 BGB), common law doesn't recognise force majeure as a background legal concept. If your contract doesn't include the clause, the protection doesn't exist. You're left with the doctrine of frustration (UK, Australia) or impracticability (US, UCC § 2-615), both of which have a much higher bar.

Relevant legislation

• Common law doctrine of frustration (UK, Australia, Canada). Only applies when performance is truly impossible or illegal, not just difficult or expensive. Very hard to invoke.
• UCC § 2-615 (US). Covers "impracticability" for sale of goods. Broader than frustration but still requires more than mere inconvenience or increased cost.
• Civil law codifications. Many civil law jurisdictions have statutory force majeure (France: Art. 1218; Germany: § 275 BGB). These apply by default even without a contractual clause, unlike common law.

In common law jurisdictions, a well-drafted force majeure clause is the only reliable protection.

What to look for

Start with the event list. A closed list (war, earthquake, flood) without a catch-all is a trap. It covers yesterday's crises but not tomorrow's. A pandemic wouldn't trigger a clause that only lists natural disasters. Look for a catch-all like "any event beyond the reasonable control of the affected party."

Check the trigger threshold. "Impossible" is very hard to satisfy. "Hindered" is generous but open to abuse. Most well-drafted clauses use "prevented" or "unable to perform," which sits in the middle.

Notice requirements trip people up more than anything else. Many clauses require written notice within a short window, sometimes as little as 48 hours. Miss it, and the claim fails even if the underlying event clearly qualifies.

Check what happens if the event drags on. Does the clause allow termination after a set period (commonly 90 days), or only suspension? A suspension-only clause can leave both parties trapped in a zombie contract for months.

Common pitfalls

Having no force majeure clause at all is the most common problem in common law contracts. You'll be relying on frustration or impracticability doctrines, which require performance to be genuinely impossible. Courts have consistently held that increased cost, supply chain disruption, or reduced profitability don't qualify.

Post-COVID, watch for pandemic exclusions. Some counterparties now carve pandemics out of force majeure clauses, arguing they're "foreseeable." Whether you accept that depends on context, but it means giving up protection against the exact event that made everyone take force majeure seriously.

Asymmetric clauses are another issue. If force majeure excuses the supplier's performance but not the customer's payment obligations, the supplier is stuck: they can't perform, the customer stops paying, and neither side can terminate.

Example clause

"Neither party shall be liable for any delay or failure to perform if caused by circumstances beyond its reasonable control, including but not limited to: acts of God, pandemic, war, terrorism, strikes, government actions, or third-party infrastructure failure. The affected party shall notify the other in writing within 14 days and use reasonable endeavours to mitigate the impact. If the event continues for more than 90 days, either party may terminate on 30 days' notice."

Frequently asked questions

Does common law recognise force majeure?

Only as a contractual concept. There's no background rule that applies by default. If the contract doesn't include a force majeure clause, your only fallback is frustration (UK, Australia) or impracticability (US), both of which have a much higher threshold. This is a major difference from civil law systems, where force majeure is built into the law itself.

Is a pandemic a force majeure event?

Only if the clause covers it. An explicit mention of "pandemic" or "epidemic" will work. A broad catch-all probably covers it too, though this was heavily litigated during COVID-19. Some newer contracts explicitly exclude pandemics, which means you'd need to rely on the catch-all, if there is one.

What's the difference between force majeure and frustration?

Force majeure is contractual; you define the scope. Frustration is a common law doctrine that applies automatically when performance is truly impossible or illegal. Frustration is much harder to invoke, and it terminates the entire contract rather than suspending it. In practice, parties who can't use force majeure because their clause is too narrow almost never succeed on frustration either.

How Clara helps

Clara checks whether force majeure clauses use open or closed event lists, what trigger threshold they set, and whether notice and mitigation requirements are present. It also flags contracts that lack a force majeure clause entirely.