Force Majeure Clause Explained: When It Actually Excuses You

A force majeure clause excuses a party from performing when something outside its reasonable control prevents it. No breach, no damages — performance is suspended or the contract ends.

Almost every commercial contract has one. Almost nobody reads it until something happens, at which point they discover the clause covers "acts of God, war and terrorism" and says nothing about the thing that actually stopped them.

The clause is a list, not a principle

This is the point most people miss. In common-law systems there is no general doctrine of force majeure that fills the gap — you get what the clause says. If the event is not in the list, and no catch-all covers it, the clause does not help you.

A modern list usually includes: natural disasters, war, terrorism, civil unrest, government action, changes in law, labor disputes, and — since 2020 — epidemics and pandemics. Increasingly also cyberattacks and utility or telecoms failure.

What is usually excluded, and worth checking: supply-chain disruption, price increases, and the failure of your own subcontractors. Those are the things that actually stop most businesses, and they are often carved out explicitly.

The catch-all sentence

Most clauses end with something like "...or any other event beyond the reasonable control of the affected party."

That helps less than it looks. Where a general catch-all follows a list of specific items, courts frequently read it as limited to things of the same kind as those listed. A clause listing only natural disasters and war may not stretch to a regulatory change.

If you want breadth, ask for the catch-all to say so expressly:

...or any other event beyond the reasonable control of the affected party, whether or not similar to the events listed above.

The three tests

Even where the event is listed, most clauses require all three:

1. Causation. The event must actually have prevented performance, not merely made it harder. "Hindered" and "delayed" are weaker triggers than "prevented" — check which verb your clause uses, because it decides how bad things must get.

2. Foreseeability. Many clauses exclude events that were foreseeable at signature. A contract signed in 2026 will struggle to treat a pandemic as unforeseeable in the way one signed in 2019 could.

3. Mitigation. You must have taken reasonable steps to avoid or reduce the effect. A party that made no attempt to find an alternative supplier usually fails here.

What happens when it applies

Suspension, not cancellation is the normal first consequence: obligations are paused while the event continues.

Notice is almost always a condition — often within a short window, in writing, describing the event and its expected duration. Miss it and you can lose the protection entirely.

A long-stop termination right usually follows: if the event continues beyond 30, 60 or 90 days, either party may terminate. Check whether that right is mutual, and what happens to money already paid.

Payment usually continues. Most clauses expressly exclude the obligation to pay money from force majeure relief. Being unable to trade rarely excuses you from paying invoices already due.

What to negotiate

• Add the events that would actually stop you. For a software business: cloud provider outage, cyberattack, loss of a critical third-party API — the same dependencies a SaaS agreement should address. For a physical product: supply-chain failure and shipping disruption.
• Use "prevents or materially hinders" rather than "prevents" alone.
• Make the notice period workable — 5 business days, not 48 hours.
• Make the termination right mutual, with a refund of prepaid amounts for undelivered services.
• Confirm the catch-all is not limited to events similar to those listed.

Force majeure versus frustration and impracticability

Where there is no clause, or it does not apply, the fallback doctrines are narrow. Frustration (in common-law systems generally) and commercial impracticability (under the UCC in the US) both set a high bar: performance must be essentially impossible or radically different from what was agreed, not just unprofitable.

Relying on those instead of a well-drafted clause is a much weaker position. Which is why the twenty minutes spent on the list is worth it.

FAQ

What counts as force majeure?

Only what the clause lists, plus whatever a catch-all genuinely covers. There is no general background principle in common-law systems that fills gaps — if your event is not in the list, you usually get no relief from the clause.

Does force majeure excuse paying money?

Usually not. Most clauses expressly carve out payment obligations, so a party can be relieved of delivering while remaining obliged to pay for what was already delivered.

Is a pandemic force majeure?

If the clause lists epidemics or pandemics, yes. If it does not, it depends on the catch-all and on foreseeability — and for contracts signed after 2020, arguing that a pandemic was unforeseeable is considerably harder than it once was.

What is the difference between force majeure and frustration?

Force majeure is contractual: you get the relief the clause gives. Frustration is a doctrine that can discharge a contract when performance becomes impossible or radically different, and its bar is much higher. A clause is far more reliable than the doctrine.

Do I have to give notice to rely on force majeure?

Almost always, and often within a short window. Notice is typically a condition of the relief rather than an administrative step, so missing it can defeat an otherwise valid claim.

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