A force majeure clause is a contractual provision that establishes what happens if a breach of contract occurs due to an unforeseeable event (a force majeure event). The clause typically defines what is considered a force majeure event and outlines each parties’ obligations should such events occur. In case of extended force majeure events, the force majeure clause may even allow for contract termination.

What is a force majeure event?

“Force majeure” (from the French for “superior force”) refers to events beyond the contracting parties’ control. This typically includes: accidents, pandemics, acts of war or terrorism, civil or military disturbances, and nuclear or natural catastrophes or acts of God. Strikes and work stoppages are sometimes listed, typically with a caveat that parties are not required to resolve strikes.

Parties are sometimes obligated to take reasonable steps to avoid and remediate force majeure events (except labor-related ones).

What is an example force majeure event?

There have always been examples of force majeure events occurring worldwide.

• Hurricane Sandy caused companies such as Motiva to declare force majeure events at some facilities.
• Different oil companies declared force majeure events related to operations in Nigeria and Angola.
• A number of mining companies declared force majeure events related to labor disruptions in South Africa (e.g., Anglo American Platinum, Assmang).

What are the exceptions to force majeure?

Any events that are within the reasonable control of a party, occur as a result of negligence by one of the contracting parties, or are explicitly listed as exceptions in the force majeure clause, will not be deemed a force majeure event.

This may include, but is not limited to: financial hardship, failure of subtractors…

Economic occurrences, such as market crashes or price spikes, are sometimes explicitly excluded from being considered force majeure events. However, market crashes can occur as a result of disasters (e.g., post-September 11, 2001 stock market crash) and the underlying disaster could support a force majeure claim.

It is also common, since 2020, for force majeure clauses to include language excluding the COVID-19 pandemic from being considered a force majeure event.

How Do You Review Force Majeure Clauses in a Contract?

After locating force majeure language in each agreement, key pieces of information to focus on when reviewing termination provisions include:

What constitutes force majeure

Reviewing what specific events constitute force majeure events informs parties whether a given event is covered by the language. It should also be noted whether “catch-all” language (e.g., “any other events that cannot be predicted and are unpreventable and unavoidable by the affected [p]arty”) is included in the definition of force majeure. This language, while broad, is generally interpreted narrowly by courts, so may or may not provide relief for an event that is not specifically enumerated in the definition.

On the other hand, close review of what carve-outs (e.g., as mentioned above, general economic conditions, increase in prices, change in law) exist within the definition of force majeure in an agreement is also key in determining whether a given event constitutes a force majeure event.

Time requirement

Force majeure clauses may include a requirement that the force majeure event impede the affected party’s performance for a specific period of time before force majeure protections can be triggered (e.g., “an event lasting less than ten (10) business days shall not be considered a force majeure event.”).

Notice requirement

A party seeking to invoke a force majeure clause must provide timely notice in accordance with the notice provision. Otherwise, protection may not be available even though a triggering event has occurred. Some notice provisions require notice in advance of the performance due, while others require notice within a certain number of days of the triggering event (see the distribution agreement and lease examples below).

Additionally, it is important to note what, if any, type of supporting documents must be provided to support the claim that a force majeure event has occurred.

Consequences of force majeure event

An ongoing force majeure event that remains unresolved may give the unaffected party other rights over time. For example, the unaffected party may have the right to terminate the agreement if the force majeure event exceeds a specified period of time, leading to considerations of what financial obligations the parties would be required to fulfill in the event of termination.

Other less stringent consequences of force majeure events include the temporary suspension of performance by the affected party and/or consultation and discussion of modifying the contract obligations to accommodate the affected party.

Continued obligations of the unaffected party

Language that requires an unaffected party to continue to perform even if the affected party has suspended its performance due to a force majeure event should also be noted (e.g., “a force majeure event will not excuse a party’s payment obligation hereunder”).

Impact from other provisions

As with the review of any contractual provision, it’s also important to be aware of other terms of the contract that may affect the interpretation and operation of force majeure provisions. Such other provisions (like business continuity and/or disaster recovery plan requirements) may afford an unaffected party some protections even if the force majeure clause is successfully invoked by an affected party.

Examples of the Force Majeure Clause

Here are a number of examples of force majeure clauses from different agreement types:

Example 1: From a distribution agreement:

Neither Party shall lose any rights hereunder or be liable to the other Party for damages or losses on account of failure of performance by the defaulting Party if the failure is occasioned by government action, war, terrorism, fire, explosion, flood, strike, lockout, embargo, act of God, or any other cause beyond the control and without the fault or negligence of the defaulting Party, provided that the Party claiming force majeure has exerted all reasonable efforts to avoid or remedy such force majeure; provided, however, that in no event shall a Party be required to settle any labor dispute or disturbance. Such excuse shall continue as long as the condition preventing the performance continues. Upon cessation of such condition, the affected Party shall promptly resume performance hereunder. Each Party agrees to give the other Party prompt written notice of the occurrence of any such condition, the nature thereof, and the extent to which the affected Party will be unable to perform its obligations hereunder. Each Party further agrees to use all reasonable efforts to correct the condition as quickly as possible and to give the other Party prompt written notice when it is again fully able to perform its obligations.

Example 2: From a distribution agreement:

No Party to this Agreement shall be liable for failure or delay of performance of any of its obligations hereunder if such failure or delay is due to causes beyond its reasonable control including, without limitation, natural disasters, fires, earthquake or storm, strikes, failures of public utilities or common carriers, acts of war, or intervention, acts restraints or regulations of any governmental authority, including compliance with any order of any governmental considerations; provided that any such delay or failure shall be remedied by such Party as soon as possible using commercially reasonable efforts after removal of the cause of such failure. A Party suffering such delay or which expects to suffer such delay shall promptly notify the other Party in writing of the cause and expected duration of such delay. In the event a delay lasts or is expected to last more than thirty (30) days, then either Party shall have the option to terminate this Agreement upon written notice.

Example 3: From a supply agreement:

Each of the parties hereto shall be excused from delays in performing or from failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such party, including, but not limited to, forces of nature, acts of God, strikes, lockouts, wars, blockades, insurrections, riots, epidemics, restraints or requirements of any government or government agency, civil disturbances, explosions, breakage or accident to machinery or lines of pipe, unavailability of raw material or supplies, strandings, perils of the sea, the binding order of any court or governmental authority which has been resisted in good faith by all reasonable means, and other cause, whether of the kind enumerated or otherwise, not reasonably within the control of the party claiming suspension. Failure to prevent or settle any strike shall not be considered to be a matter within the control of the party claiming suspension. However, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause of such delay or failure.

Example 4: From a supply agreement:

If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.

Notwithstanding any other provision of this Agreement, neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under this Agreement, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.

If at any time the Company claims Force Majeure in respect of its obligations under this Agreement with regard to the supply of the Product, the Purchaser shall be entitled to obtain from any other person such quantity of the Product as the Company is unable to supply.

Example 5: From a lease:

Excusable Delays. The delay or inability of either party to perform any obligation to be performed by it pursuant hereto when required (other than the obligation to make payments as provided herein), if caused by reason of “Force Majeure” (as hereafter defined) will not constitute a default nor subject the party so failing to any liability to the other. The party affected by or anticipating a Force Majeure will promptly notify the other by the most expeditious means, confirming in writing within ten (10) working days, the details thereof and of its expected duration and the estimated effect upon its ability to perform its obligations hereunder. Such party will promptly notify the other party when Force Majeure circumstances have ceased to affect its ability to perform its obligations pursuant to this Lease.

Force Majeure. The phrase “Force Majeure” means any act of God or the public enemy; explosion; fire; storm; lightning; earthquake; flood; drought; strike; lockout or other labor trouble; riot or civil disorder; sabotage; blockade or embargo; war (whether or not declared and whether or not the United States is a participant); Federal, State or Municipal law, regulation, order, license, priority, seizure, requisition or allocation, whether or not valid; inability of Lessee or Lessor to obtain raw materials, equipment, fuel, power, labor, or transportation equipment; machinery or equipment breakdown of the Plants or a supplier’s plant, delay or accident involving transportation equipment; or any other circumstances of a similar or different nature beyond the reasonable control of the party affected thereby.

Example 6: From a franchise agreement:

We shall not be responsible or liable for delay or failure in the performance of this Agreement, if such delay or failure is due to any cause beyond our control, such as, but not limited to, strikes, scarcity of labor, fires, floods, storms, earthquakes, explosions, accidents, breakage of computers, scarcity of materials, fuel or transportation, and delays or defaults caused by public carriers that cannot reasonably be forecast or provided against, embargoes, governmental regulations or orders, perils of navigation, acts of public enemies, mobs or rioters and acts of God.

Example 7: From an indenture:

In no event shall the Trustee be responsible or liable, nor shall the Company be responsible or liable to the Trustee, for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, and nuclear or natural catastrophes or acts of God; it being understood that the Trustee or the Company, as the case may be, shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under the circumstances.