A force majeure clause is a contract provision that excuses one or both parties from performing their obligations when an extraordinary event outside their control makes performance impossible or impractical.
Most contracts have one. Most people skip over it during negotiations because it reads like legal wallpaper. Then something happens, someone tries to invoke it, and both sides discover the clause doesn’t actually cover what just happened.
Force majeure is French for “superior force.” In American and English law, unlike in some civil law countries, the doctrine only applies if the contract includes a force majeure clause. No clause, no defense.
And even with a clause, whether it applies depends entirely on the specific words in that clause.
The ICC updated its model force majeure clause in March 2020, the first revision since 2003. The timing was not a coincidence.
TL;DR
- A force majeure clause excuses contract performance when an extraordinary event outside either party’s control makes performance impossible. In US and English law, the clause must be in the contract or the defense doesn’t exist.
- Generic boilerplate force majeure language frequently fails in court because it doesn’t specifically list the type of event being invoked. Courts interpret these clauses narrowly.
- The ICC updated its model force majeure clause in March 2020 for the first time since 2003, adding a short form version and a 120-day termination timeline.
- A functional force majeure clause needs three things: a specific list of triggering events, a clear standard for how performance must be affected, and a notice requirement with a defined timeline.
- ContractSafe makes every force majeure clause searchable across your contract portfolio, so when disruption hits you can find which contracts have coverage and which don’t.
What Does a Force Majeure Clause Do?
Think of it like an insurance policy. You pay for it, file it away, and assume it’ll cover you when something goes wrong.
But insurance policies have exclusions. They define “covered events” narrowly. If the event that hit you isn’t on the list, the policy is just paper.
Force majeure clauses work the same way. The clause defines which events qualify, what standard must be met, and what happens when the clause is triggered. Everything outside that definition is uncovered.
A standard force majeure clause does three things. It lists the events that qualify (natural disasters, war, government action, pandemics, labor strikes). It sets a standard for how the event must affect performance (impossibility? impracticability? just difficulty?).
And it specifies the consequences (suspension, extension of time, termination).
The problems start when any of those three elements is vague.
Why Boilerplate Fails
In 2021, a federal court in the Southern District of New York ruled in Phillips Auctioneers v. JN Contemporary Art that COVID-19 qualified as a “natural disaster” under a consignment agreement’s force majeure clause.
Phillips invoked the clause to terminate the contract. The court agreed.
But the ruling turned on the specific language in that specific contract. Judge Denise Cote noted that the clause’s wording was broad enough to encompass pandemics.
A clause with a narrower list of events, one that mentioned “earthquakes, hurricanes, and floods” but not “pandemics,” might have gone the other way.
This is the central problem with boilerplate. A clause that lists “acts of God, war, and natural disasters” feels comprehensive.
Courts don’t read it that way. They read it as a closed list. If the event isn’t on the list, the clause doesn’t apply.
New York courts are especially strict. They require the invoking party to prove that the event was unforeseeable, beyond their control, and that performance is truly impossible, not just more expensive or more difficult.
What to Put in a Force Majeure Clause
The ICC’s 2020 model clause is a useful template. It lists specific “presumed force majeure events” where the affected party only needs to prove they couldn’t overcome the effects.
This is a lower threshold than most boilerplate clauses, which require the party to also prove the event was unforeseeable.
The ICC’s presumed events include war, terrorism, natural disasters, epidemics, government sanctions, labor disputes, and infrastructure failures. The 2020 revision added “prolonged breakdown of information systems” to the list, a nod to the growing risk of cyberattacks.
Beyond the ICC template, a well-drafted clause covers:
- Specific triggering events. Name them. Pandemics, epidemics, government-ordered shutdowns, trade embargoes, cyberattacks, supply chain failures. If you can imagine it, list it. Courts apply the doctrine of ejusdem generis, which means catch-all language like “other events beyond the parties’ control” is interpreted narrowly based on what was specifically listed before it.
- The performance standard. Does the event need to make performance impossible, or just impractical? There’s a significant legal difference. The ICC clause uses “prevents or impedes” performance, which is broader than “renders impossible.”
- Notice requirements. The ICC clause requires the affected party to notify the other party “without delay.” Specify how notice must be given (written, via email, certified mail) and what information it must include.
- Mitigation obligations. The affected party should be required to take reasonable steps to limit the impact of the event. A party that suffers a force majeure event but does nothing to mitigate shouldn’t get the same protection as one that took reasonable steps.
- Duration and termination. The ICC’s 2020 clause sets a default of 120 days: if the force majeure event lasts longer than 120 days, either party can terminate. Without a defined timeline, a force majeure claim can suspend a contract indefinitely.
Force Majeure vs. Frustration of Purpose
If your contract doesn’t have a force majeure clause, you may still have a defense under the common law doctrine of frustration of purpose (or impracticability of performance, depending on the jurisdiction).
But frustration is harder to prove. The affected party must demonstrate that the event substantially frustrated the contract’s principal purpose, that both parties assumed the event wouldn’t occur, and that the event wasn’t the affected party’s fault.
Courts apply frustration narrowly. An event that makes performance more expensive or less profitable generally doesn’t qualify. The purpose of the contract must be fundamentally destroyed, not just made inconvenient.
The practical lesson: don’t rely on frustration. Include a force majeure clause and make it specific.
How ContractSafe Helps You Find Your Force Majeure Clauses Before You Need Them
When disruption hits, the first question is always: which contracts have force majeure clauses, and what do they say?
If your contracts are scattered across shared drives and email, answering that question takes days. By the time you’ve found all the relevant clauses, the notice deadlines may have already passed.
ContractSafe stores every contract in one searchable repository. Type “force majeure” into natural language search and get results across your entire portfolio in seconds, including scanned PDFs.
AI extraction pulls key dates and terms from uploaded contracts automatically. Set alerts for notice deadlines so you don’t miss a window to invoke a clause or respond to someone invoking one against you.
Unlimited users on every plan means your legal team, procurement, and operations can all search the same system. Nobody has to email anybody to find out whether a contract has a force majeure clause.
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