Force Majeure Clauses: What They Actually Excuse and What They Do Not

What "force majeure" actually means

"Force majeure" is a French legal term meaning "superior force" — the idea is that some events are so extraordinary, so far beyond a party’s reasonable control, that holding the party to its contract obligations would be unjust. Classic examples include natural disasters, wars, government orders, large-scale industrial accidents, and other catastrophic events that make performance physically impossible or commercially impracticable. The clause does not appear automatically; it must be written into the contract, and what it covers depends on what the clause says.

The doctrine exists because contracts are usually drafted under normal-world assumptions, and rigid enforcement during truly extraordinary events would produce unfair results — a vendor cannot deliver because a hurricane destroyed the only port; a venue cannot host because the government banned gatherings. Force majeure provides a defined safety valve. But the safety valve only works for the situations it was designed for, and the clause’s specific language determines exactly which situations qualify.

What typically triggers it

A standard force majeure clause lists specific categories of events that trigger it. The most common list includes:

• Acts of God — natural disasters like hurricanes, earthquakes, floods, fires (if not caused by negligence).
• War, terrorism, civil unrest, riots, insurrections.
• Government actions — embargoes, quarantines, executive orders, regulatory shutdowns.
• Strikes, labor disputes, and lockouts (sometimes excluded if caused by the affected party).
• Major utility failures, infrastructure collapses.
• Epidemic or pandemic — often added or strengthened after COVID.
• A catch-all phrase like "any other event beyond the reasonable control of the affected party."

What typically does not trigger it

Just as important is what force majeure does not cover. The classic exclusions:

• Market or financial conditions — a downturn, inflation, exchange-rate shifts.
• Difficulty obtaining materials at reasonable cost (versus genuine unavailability).
• Loss of customers or revenue.
• Inability to obtain financing.
• Disputes with key suppliers (unless covered specifically).
• Internal labor issues caused by the affected party.
• Failures of subcontractors, unless explicitly extended.
• Events that the affected party could have prevented with reasonable foresight or contingency planning.

The "impossible vs. inconvenient" line

A crucial distinction: force majeure typically excuses performance only when it has become impossible or genuinely impracticable, not merely more difficult or more expensive. A vendor who can still ship the product, but only at higher cost or with delays, generally cannot invoke force majeure to escape performance — the situation has become harder, not impossible. The bar is high precisely because the doctrine is an extraordinary remedy. A party invoking force majeure must usually show that the event made performance genuinely unavailable, not just unattractive.

This is where many post-COVID force majeure claims foundered. A supplier whose factory was temporarily slowed by employee illness might not qualify; a supplier whose factory was shut down entirely by a government order plausibly might. The same event can trigger force majeure for one party and not for another, depending on its actual effect on their specific ability to perform.

COVID and the lessons learned

COVID was the first event in most lawyers’ careers to test force majeure clauses across the entire economy simultaneously. The results were instructive. Clauses that specifically mentioned "epidemic" or "pandemic" generally triggered cleanly for parties whose performance was actually prevented. Clauses that listed only natural disasters and acts of war often required more argument, and outcomes varied by jurisdiction. Government-ordered closures generally qualified under most clauses; voluntary closures sometimes did not. Supply-chain disruptions short of complete unavailability often failed to qualify because they made performance harder rather than impossible.

The post-COVID drafting trend has been to expand the list of triggering events explicitly to include epidemics, pandemics, public-health emergencies, and similar — and to be more thoughtful about whether the clause excuses payment obligations as well as performance obligations. If you are signing a contract in the post-COVID era, expect to see a longer, more specific force majeure list, and read it for whether the events you actually worry about are covered.

Payment obligations are usually separate

A critical point that surprises many parties: force majeure typically excuses the affected party from performing — delivering goods, providing services, hosting events — but does not excuse the other side’s obligation to pay for what was already delivered or for the contract overall. If a vendor cannot perform because of a force majeure event, you may not owe for future undelivered services, but you usually still owe for what was completed before the event. Conversely, payment-side force majeure (you cannot pay because of an event affecting you) is rarely accepted — the courts generally view payment as one of the things parties can always do, even in crisis.

For ongoing-service contracts like SaaS subscriptions or retainers, this distinction can be important. A vendor who cannot deliver service for two months due to force majeure may not be in breach, but you may also not owe for those two months. Whether the subscription pauses, extends, or simply ends depends on what the contract says. Read both the force majeure clause and the payment clause together to understand how an interruption would actually play out.

Notice and mitigation requirements

Most force majeure clauses require the party invoking the clause to give prompt written notice to the other side — often within a defined window after the event — and to take reasonable steps to mitigate the impact. Missing the notice deadline can forfeit the right to invoke the clause; failing to mitigate can limit the relief available. So even when force majeure clearly applies, the procedural requirements determine whether the affected party actually gets the benefit of the clause. When you read a force majeure clause, look for these requirements; when you are the one invoking it, follow them carefully.

How long does force majeure last?

Most clauses specify what happens if the force majeure event continues for a long period. Common structures include a right for either party to terminate the contract if the event persists beyond a defined window (often 30 to 90 days), with appropriate true-ups for amounts paid or services delivered before the termination. Without this right, the contract can be stuck in suspended animation indefinitely — neither party performing, the relationship neither alive nor dead. The termination right gives both sides a clean exit when the disruption proves permanent or near-permanent.

Common-law doctrines that can apply when the clause does not

If your contract has no force majeure clause, or the clause does not cover your situation, you are not necessarily without recourse. Two common-law doctrines can excuse performance in extraordinary circumstances even without contractual force majeure language: impossibility (performance has become genuinely impossible due to an unforeseeable event) and frustration of purpose (the contract’s underlying purpose has been destroyed even though performance is technically possible). These doctrines are narrower than most force majeure clauses, harder to invoke, and applied more cautiously by courts — but they exist, and they sometimes provide the relief a missing clause does not. For high-stakes contracts, knowing about these doctrines is part of evaluating your real exposure.

The same logic flows the other way. A force majeure clause that excludes events these doctrines might otherwise cover can leave you in a worse position than a contract with no clause at all, because courts may interpret your contractual specification as having displaced the common-law doctrines. So a poorly written force majeure clause is sometimes worse than no clause; the lesson is to either draft it carefully or leave it out entirely and rely on the default rules.

What to negotiate

A few changes can make a force majeure clause work better for you. Suggestions, depending on which side you are on:

• Add specific triggering events relevant to your industry (pandemic, cyber attack, supply-chain disruption) rather than relying on catch-all language.
• Confirm whether the clause is mutual — both sides can invoke it, not just one.
• Specify the notice requirement explicitly — too tight a window can forfeit a legitimate claim.
• Address payment obligations directly — does payment for partial performance survive?
• Build in a termination right for either party if the event persists beyond a defined period.
• Define "reasonable control" carefully to avoid expanding the clause to cover ordinary business risks.
• Address subcontractor failures explicitly — are they covered or not?

The bottom line

A force majeure clause is a safety valve for genuinely extraordinary events that make contract performance impossible — not a get-out-of-jail-free card for any disruption. It typically excuses performance but not payment obligations, requires specific events to be listed (or at least credibly within a catch-all), demands notice and mitigation, and usually allows termination if the event persists. Read the clause in any contract you sign, particularly for the specific events it covers and the procedural requirements it imposes. If you want a fast read on whether your contract’s force majeure clause would actually help in the scenarios you worry about, ClauseAudit reviews the agreement in about a minute, flags the clause and its scope, and tells you in plain English what would and would not be excused — so you sign with realistic expectations rather than vague comfort.