Force Majeure Clauses Explained: What Counts, What Doesn't and How to Invoke One

A force majeure clause excuses a contracting party's non-performance when a specified event beyond its reasonable control — natural disaster, war, government action, epidemic — prevents performance as written. The doctrine is entirely contractual in U.S. law: unlike civil-law systems, there is no general force majeure code provision, so a party is excused only if its contract says so, for the events the clause lists, to the extent performance is actually prevented. The clause neither excuses inconvenience nor rescinds the deal; it suspends or, in longer disruptions, terminates obligations while allocating a risk the parties priced.

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What does a force majeure clause require to work?

Three elements, consistently enforced. First, the event must be within the clause's list — courts construe enumerated events against extension under ejusdem generis, reading catch-all phrases like "other events beyond the party's control" as limited to the kinds of events named before it. Second, the event must be beyond the party's reasonable control — foreseeable events a party assumed do not qualify; a party who knew of a port strike when contracting cannot claim it later. Third, the event must actually prevent performance — the operative words matter: clauses using "prevent" are strict, while "hinder" and "delay" formulations excuse partial interference. Price spikes and market shifts almost never qualify on any formulation: courts uniformly hold that economic hardship, however severe, is a commercial risk that force majeure does not reach — a lesson re-taught during the 2021-2022 supply and energy shocks.

What did the pandemic-era case law settle?

The COVID-19 litigation produced a durable map. Government orders closing businesses qualified as governmental action in most rulings that reached them — but only where the order, not falling demand, prevented performance. In re Hitz Restaurant Group (N.Y. 2021) held the governor's executive orders suspended performance, distinguishing lost customer demand, which did not excuse. Conversely, contracts whose performance remained legally possible failed: the English Frustration line and U.S. analogues rejected impossibility where the party could perform at greater cost. The English leading cases (Frustration of contract doctrine aside, courts divided on what qualified as force majeure) underscored the practical divide: "pandemic" and "epidemic" clauses drafted after 2003 SARS worked; silence did not. The drafters' lesson has since been absorbed: post-2020 clauses routinely name epidemics, government orders and supply-chain disruptions expressly, and courts apply the refined text literally.

How do you invoke the clause correctly?

1. Read the notice provision: most clauses require written notice within a fixed number of days of learning of the event, describing the event, the affected obligations and the expected duration — defective notice waives the excuse in many jurisdictions.
2. Segregate prevented from possible performance; a partial excuse over-performs and gets struck.
3. Document causation contemporaneously — the order, the closure, the shutdown log — because "prevented" is proven with facts, not adjectives.
4. Continue mitigation: most clauses and general doctrine require reasonable efforts to perform and to limit the other side's loss; unilateral stop-work invites damages claims.
5. Track the termination trigger: many clauses let either party terminate if force majeure continues past 60-120 days, converting an excuse into an exit with defined consequences.

What about clauses that don't exist — impossibility and frustration?

Common-law backstops fill the gap narrowly. Impracticability under UCC 2-615 excuses sellers when performance is made impracticable by the occurrence of a contingency the parties assumed would not occur — but not by market conditions, and the seller must allocate production among customers fairly and notify buyers. The common-law impossibility doctrine requires genuine destruction of the means or subject of performance; frustration of purpose requires a near-total destruction of the contract's principal purpose. Post-pandemic rulings set the bar high: a contract is not frustrated because it became a bad bargain.

What should parties negotiate into the clause?

A modern clause specifies: the triggering events (including government action, epidemics, cyber incidents, utility and logistics failures); the operative standard (prevents / hinders, chosen deliberately); notice mechanics with realistic deadlines; mitigation duties; payment obligations during suspension (usually continuing for services already rendered); allocation and termination rights on prolonged events; and — increasingly — carve-outs for the counterparty's own failures or those of its subcontractors, to prevent cascading excuses. The negotiation is really about risk allocation: which side bears which disruption is a pricing question, and the clause is where it is answered. Parties who discover its text only when performance fails have already made their choice.