Force majeure clauses got far more attention after widespread supply chain disruptions and shutdowns showed how many contracts had vague, boilerplate versions that didn't actually protect the businesses relying on them. A force majeure clause excuses a party from performing contractual obligations when an extraordinary event outside their control makes performance impossible or impracticable, but a poorly drafted one can leave a business with no real protection precisely when it's needed most.
Understand What Force Majeure Actually Does
A force majeure clause doesn't excuse a party from a contract simply because performance became harder, more expensive, or less profitable — most courts interpret these clauses narrowly, requiring the triggering event to make performance genuinely impossible or, depending on the contract's language, impracticable. Generic hardship or a bad business outcome typically isn't enough on its own, which is exactly why the specific wording of the clause matters so much.
List Specific Triggering Events, Not Just Vague Categories
A clause that only says "acts of God" or uses similarly vague catch-all language leaves too much open to interpretation and judicial discretion. A stronger clause lists specific categories — natural disasters, war, government orders or shutdowns, labor strikes, pandemics, supply chain failures, cyberattacks — and includes a general catch-all phrase to cover unforeseen events of a similar nature, rather than relying on the catch-all alone.
Explicitly Address Pandemics and Government Action
Many contracts written before recent years didn't specifically list pandemics, disease outbreaks, or government-mandated shutdowns, leading to prolonged disputes over whether general "acts of God" language covered these events. Contracts drafted now should explicitly address these categories rather than assuming they're implicitly covered by older, more general language.
Define What Happens When Force Majeure Is Triggered
A complete clause spells out the consequences: whether obligations are merely suspended during the event or the contract can be terminated if the disruption continues beyond a specified period, whether partial performance is still required if possible, and what notice requirements apply to the party claiming the excuse. Clauses that only state an event is covered without specifying what happens next create ambiguity exactly when clarity matters most.
Require Prompt, Written Notice
Most well-drafted force majeure clauses require the affected party to provide written notice within a specific timeframe after the triggering event, along with a description of the impact and an estimate of the expected duration. Failing to provide timely notice can waive the right to invoke the clause even when the underlying event genuinely qualifies, so this procedural requirement deserves the same attention as the substantive triggering events.
Address Mitigation Obligations
Courts and well-drafted contracts generally expect the affected party to take reasonable steps to mitigate the impact of the disruption rather than using force majeure as a blanket excuse to simply stop performing. Including a mitigation requirement in the clause, and actually documenting mitigation efforts when an event occurs, strengthens the position of a party later relying on the clause.
Don't Rely on a Generic Template Without Review
Force majeure clauses pulled from generic contract templates often use outdated or overly narrow language that doesn't reflect the specific risks relevant to a particular business or industry. Having a clause reviewed and tailored by an attorney, particularly for high-value or long-term contracts, is worth the modest cost given how much can turn on the specific wording during an actual dispute.
A force majeure clause that's never been tested can look perfectly adequate right up until a real disruption hits and reveals gaps in its language. Reviewing existing contracts for outdated or vague force majeure provisions, rather than waiting for the next disruption to expose them, is a straightforward way to close a gap most businesses don't realize they have.
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