Force Majeure Clauses: What They Mean, How They Work, and What to Negotiate

"Force majeure" is French for "superior force." In contract law, a force majeure clause excuses a party's contractual obligations — temporarily or permanently — when an extraordinary event outside that party's control makes performance impossible, impracticable, or pointless. Without this clause, the default rule in American contract law is blunt: you promised to perform, and unless performance is literally impossible, you owe damages for failing to deliver.

The clause above is a moderately broad, commonly used force majeure provision. It covers the classic categories — natural disasters, acts of God — and extends to pandemics, government actions, terrorism, and third-party infrastructure failures. When triggered, the provision excuses the party facing the force majeure event from liability for the resulting delay or non-performance.

Three things make a force majeure clause work or fail:

**The event list.** Force majeure clauses operate by enumeration: the events listed define the scope of protection. If the event that disrupts your performance is not on the list — and no catch-all language covers it — the clause does not help you. Courts interpret force majeure clauses strictly. A clause that covers "natural disasters" without mentioning pandemics did not protect many parties when COVID-19 disrupted their performance in 2020, because courts refused to read a pandemic into a clause that mentioned only geological and meteorological events.

**Causation.** The listed event must actually cause the delay or failure. If you were already behind schedule before a hurricane hit, you cannot invoke force majeure to excuse the delay that predated the storm. If your supply chain disruption had other contributing causes, courts may require you to apportion fault and will not excuse the non-force-majeure portion.

**Foreseeability.** Courts uniformly hold that force majeure clauses are limited to events that were not foreseeable when the contract was signed. A party that entered a contract in March 2020, knowing that a global pandemic was underway, had difficulty arguing that COVID-19 was an unforeseeable event that triggered force majeure for contracts signed at that time.

Before March 2020, force majeure clauses were among the most-ignored provisions in commercial contracts. Parties signed them without scrutiny; attorneys drafted them on autopilot. COVID-19 changed that permanently. Courts across the United States spent 2020-2023 resolving force majeure disputes arising from shutdowns, travel restrictions, venue closures, supply chain collapses, and workforce disruptions. The lessons from that litigation reshaped how careful parties draft and negotiate these clauses.

**What courts decided about pre-COVID clauses.** The overwhelming majority of courts that considered COVID-19 force majeure claims under pre-2020 contracts denied them. Three reasons dominated the case outcomes. First, many older force majeure clauses listed specific events — earthquakes, floods, wars — without including pandemics or government shutdowns. Courts refused to stretch "natural disasters" or "acts of God" to include a virus and the regulatory response to it. Second, even where pandemic language arguably fit, courts often found that performance was not impossible — merely more expensive, less profitable, or commercially frustrating. Third, courts found that the pandemic was foreseeable once it was declared (particularly for contracts signed after January-February 2020), stripping away the unforeseeability foundation that force majeure requires.

**What clauses now routinely include.** Post-2020, well-drafted force majeure provisions explicitly enumerate: pandemics; epidemics; public health emergencies; government orders, shutdowns, and quarantine requirements; travel restrictions; supply chain disruptions; and component shortages. The clause quoted above captures the essential post-COVID drafting additions. The phrase "any government order, restriction, shutdown, or quarantine requirement issued in response to" a public health emergency is particularly important — it covers the regulatory response to the event, not just the biological event itself, which is often where the actual disruption occurs.

**The supply chain lesson.** COVID-19 revealed a second vulnerability: traditional force majeure clauses covered the direct event but not upstream supply chain consequences. A manufacturer that could not obtain semiconductor components because its supplier was shut down by a government order faced a gap: the force majeure event (government shutdown) happened to a third party, not to the manufacturer. Post-2020 drafting now frequently includes "disruptions to transportation networks, logistics, or supply chains" and "inability of suppliers to deliver materials, components, or services due to force majeure events affecting such suppliers."

**The insurance parallel.** Just as business interruption insurance policies faced litigation over pandemic claims (with most coverage being denied under the physical damage requirement), force majeure clauses that relied on implicit interpretations rather than explicit text were largely unenforceable. The COVID-19 experience powerfully validated the principle that force majeure protection depends entirely on the specificity of the clause's text — not on the severity of the event.

Force majeure clauses protect against a wide spectrum of disrupting events. Understanding the full taxonomy helps you evaluate whether a given clause protects you adequately and which categories you need to add.

**Natural Disasters.** The traditional core of force majeure: earthquakes, floods, hurricanes, tornadoes, wildfires, lightning strikes, volcanic eruptions. These are the original "acts of God" — events where human agency plays no role in the occurrence. Natural disasters are included in virtually every force majeure clause. The practical issue is geography and specificity: a clause that covers "earthquakes" generically should also cover related consequences (tsunamis, landslides, liquefaction) that may affect performance even without being directly mentioned.

**Pandemics and Epidemics.** As discussed in Section 02, these are now explicitly included in well-drafted clauses post-COVID. The distinction between pandemic (global) and epidemic (regional) matters — include both. Related terms: public health emergency, quarantine, lockdown, shelter-in-place orders, mandatory business closures.

**War and Armed Conflict.** War, acts of terrorism, civil unrest, riots, and insurrections are standard inclusions. The practical reach extends to economic consequences of conflict: a European company unable to ship goods through a war zone, a supply chain disrupted by sanctions against a country hosting a key supplier, a service provider unable to operate because their data center is in an embargoed territory.

**Government Actions.** One of the most practically important and frequently disputed categories. Government actions that can trigger force majeure include: new regulations that prohibit the contracted activity; executive orders mandating business closures; sanctions that make it illegal to perform; permit denials or revocations; licensing changes; import and export controls; and currency controls that make cross-border payment impossible. The key drafting distinction: "government action" generally covers unexpected regulatory changes, not enforcement of pre-existing, known regulations.

**Labor Disputes.** Strikes, lockouts, and other collective labor actions. This category raises a specific issue: some courts have refused to apply force majeure to labor disputes affecting the claiming party's own workforce, reasoning that a party has some control over its labor relations. The better-drafted provision covers "labor disputes at third parties" in addition to the party's own workforce.

**Infrastructure and Utility Failures.** Power outages, telecommunications failures, internet disruptions, and water/sewage failures. Critical for technology and SaaS companies where service availability depends on third-party infrastructure. Post-2020 drafting now frequently includes cloud service provider outages and internet exchange failures.

**Cyberattacks.** An increasingly important category. Nation-state cyberattacks on critical infrastructure — power grids, financial systems, logistics networks — can create genuine force majeure conditions even when they are not directed at the contracting parties specifically. Individual ransomware attacks on a party's own systems are more complex: courts may examine whether the party maintained adequate cybersecurity practices, treating inadequate security as a failure to mitigate rather than a force majeure event.

**Supply Chain Disruptions.** A category that COVID-19 elevated from a theoretical concern to a daily commercial reality. Disruptions to transportation networks, component shortages, raw material unavailability, and supplier force majeure events that cascade to affect downstream parties. This category is often the most commercially relevant for manufacturing, construction, and product development agreements.

Force majeure clauses are contractual provisions — they are what the parties explicitly agreed to. But three common law doctrines can also excuse performance when extraordinary events make a contract unworkable, even without a force majeure clause. Understanding how these doctrines differ from force majeure, and from each other, determines which argument is available when performance breaks down.

**Force Majeure (Contractual).** The clause the parties negotiated. It applies only to events listed in the clause (or caught by a catch-all), requires the event to actually cause the performance failure, and is governed entirely by the contract's text. Force majeure clauses typically specify the remedy — suspension of obligations, extension of time, or right to terminate. They are faster and more predictable to invoke than common law doctrines. The limitation: if the event is not listed and no catch-all applies, the clause is unavailable.

**Impossibility of Performance.** The oldest common law doctrine. A contract is discharged if performance has become objectively impossible due to circumstances that arose after the contract was formed and that neither party assumed as a risk. Classic examples: a painter contracts to restore a specific painting; the painting is destroyed in a fire before the work begins; performance is literally impossible. Impossibility is narrowly construed — courts require that performance be truly impossible for everyone, not merely impossible for this particular party. A seller who cannot source a product at a profitable price has not made the contract impossible — goods can still be procured, just at a higher cost.

**Commercial Impracticability (UCC and Restatement).** A more modern, broader doctrine derived from UCC Section 2-615 (for goods contracts) and Restatement (Second) of Contracts Section 261 (for services). Performance is excused when: (1) a contingency occurs whose non-occurrence was a basic assumption of both parties when contracting; (2) the contingency makes performance impracticable (not just more expensive or less profitable); and (3) the party claiming excuse did not assume the risk of that contingency. Courts interpreting impracticability give it more room than impossibility but still require the impracticability to be severe — a dramatic increase in cost alone is rarely enough.

**Frustration of Purpose.** Applies when performance remains technically possible but the fundamental purpose for which the contract was made has been entirely frustrated by an unforeseen event. The classic case: a licensing agreement to view a coronation procession along a specific route; the king falls ill and the procession is cancelled. The license is still technically performable — the rooms could still be occupied — but the entire reason for the contract has evaporated. Frustration requires near-total destruction of the contract's purpose; mere reduction in value or profitability is not enough.

**Why the Differences Matter.** When a contract contains a force majeure clause, most courts hold that the clause displaces the common law doctrines for the events it covers — parties who bargained for a force majeure clause are presumed to have allocated performance risk through that negotiation, and the common law doctrines do not provide a second bite at the apple for the same events. However, the common law doctrines remain available for events not covered by the force majeure clause and, in some jurisdictions, may operate alongside the clause for genuinely catastrophic events.

**The Gap Between Clauses and Doctrines.** If your contract has a narrowly drawn force majeure clause that does not cover the event that disrupted your performance, you may still be able to invoke impossibility, impracticability, or frustration of purpose as a fallback. The strength of these arguments depends on: how foreseeable the event was at contracting; whether you assumed the risk through the contract's terms; how severe the disruption was; and the governing state's approach to common law excuse doctrines.

The breadth of a force majeure clause determines who bears catastrophic risk — and the difference between narrow and broad drafting is commercially enormous. Breaking down each version reveals the practical stakes.

**The Narrow Clause (First Example).** This clause covers only four categories: acts of God, fire, flood, and earthquake. Several things it does not cover:

• *Pandemics and government shutdowns:* Not mentioned. Under this clause, COVID-19 lockdowns that made performance impossible provided no protection.
• *Labor disputes:* A strike by shipping workers that prevents delivery of materials is not covered.
• *War and terrorism:* Not listed. If a key supplier's facility is destroyed in a military conflict, the clause does not apply.
• *Government actions and regulatory changes:* Not enumerated. A new export control regulation that prohibits shipment does not trigger force majeure.
• *Cyberattacks and infrastructure failures:* Not listed. A power grid failure caused by a cyberattack is not covered.
• *Supply chain disruptions:* No protection for upstream disruptions that make materials unavailable.

The narrow clause also requires the event to be "beyond that party's control" — which is appropriate — but provides no guidance on notice, mitigation, or the remedies available when force majeure is triggered.

**The Broad Clause (Second Example).** This clause takes the opposite approach: rather than listing specific events, it covers all events "beyond that party's reasonable control" — and explicitly states that coverage is not limited to events "specifically enumerated herein." This is a catch-all approach that provides maximum protection.

The broad clause is more defensible in litigation because it does not create a negative implication from omission. When courts interpret narrow clauses, they apply the principle of expressio unius est exclusio alterius — the listing of specific items implies that unlisted items are excluded. The broad clause avoids this problem entirely.

**The Commercial Tradeoff.** Broad force majeure clauses transfer more risk away from the performing party, which benefits the party that might need to invoke it — typically the vendor or service provider. Buyers and clients generally prefer narrower clauses because they want performance certainty. The negotiating dynamic: a vendor wants broad coverage; a client wants narrow enumeration.

This version is specific enough to give both parties predictability while broad enough to cover the major modern risk categories. The final sentence — excluding pure economic events — is important for clients who want to prevent vendors from invoking force majeure simply because market conditions have made performance less profitable.

The triggering event list gets most of the attention, but the procedural requirements — notice, mitigation, and duration limits — determine whether force majeure is practically available and fairly balanced.

**Notice Requirements.** A notice requirement is nearly universal in commercial force majeure clauses. The rationale: if you are going to be excused from performance, the other party needs to know promptly so they can make alternative arrangements. The key variables in notice requirements are timing and content.

Timing varies from "immediately" (difficult to comply with during a crisis) to "within 30 days" (so long that the other party has lost significant time). Five to ten business days is the commercially standard range. The clock typically starts when the claiming party "knows or reasonably should know" of the force majeure event — not when performance actually fails. This means a company that knew a hurricane was approaching before landfall may have had its notice obligation triggered before the storm hit.

Content requirements typically specify that notice must identify: the specific force majeure event; its anticipated duration and effect on performance; and the steps being taken to mitigate. Vague notice — "we have a force majeure situation" — may not satisfy the requirement.

Failure to provide timely notice can waive the force majeure defense entirely. Courts are divided on the consequence of late notice: some treat late notice as a complete waiver; others treat it as creating liability for damages caused by the delay in notice (i.e., the damages the other party could have avoided by making alternative arrangements sooner). The safer position is to provide notice even if you are uncertain whether the event qualifies — you can always withdraw a force majeure notice, but you cannot retroactively provide one.

**Mitigation Obligations.** A force majeure clause does not excuse a party from making reasonable efforts to overcome or minimize the disruption. Mitigation is an affirmative obligation: the party claiming force majeure must actively work to resume performance as quickly as possible. Common mitigation requirements include: procuring alternative suppliers; using reasonable financial resources to secure substitute materials; rerouting delivery through unaffected channels; deploying additional personnel; and accepting schedule extensions in lieu of complete excuse.

The mitigation standard is "commercially reasonable" — the claiming party is not required to take extraordinary, disproportionate, or financially ruinous steps. A company is not required to pay ten times the market rate for substitute components just because a force majeure event has created a supply shortage. But it must make genuine, demonstrable efforts, and courts will examine the record of what steps were actually taken.

**Duration and Termination Rights.** Most commercial force majeure clauses distinguish between short-term disruptions (suspended obligations, extended performance deadlines) and long-term disruptions (right to terminate). The clause quoted above uses a 90-day threshold — a common commercial benchmark. If the force majeure event continues beyond 90 days, either party may terminate without liability. This is balanced: neither party is locked into a contract indefinitely if performance remains impossible.

Duration thresholds vary significantly by industry and contract type. Construction contracts often use 180 days due to the long planning horizons involved. Event contracts may use 30 days because the event's economic value is time-specific. Supply agreements may use 60 days as a compromise. The appropriate threshold depends on how long the other party can practically absorb the disruption and make alternative arrangements.

**The Suspension-vs.-Termination Distinction.** During the force majeure period, the claiming party's obligations are typically suspended — not permanently excused. The other party's payment obligations may also be suspended (for services not actually delivered) or may continue (for ongoing license or subscription arrangements). When force majeure ends, performance resumes. Only if the duration threshold is reached does a termination right arise. This structure preserves the contract for short disruptions while giving both parties an exit for genuinely extended ones.

A contract with no force majeure clause is not neutral — it is a deliberate or inadvertent allocation of risk that places the burden of unexpected disruption entirely on the party that fails to perform. Understanding the legal landscape without a force majeure clause is essential for both drafting and dispute resolution.

**The Default Common Law Rule.** Without a force majeure clause, the rule is simple: you promised to perform, and absent a recognized common law excuse (impossibility, impracticability, or frustration of purpose), you owe damages for non-performance regardless of why you failed. Courts enforce this rule strictly. Commercial parties are presumed to know that disruptions occur and to have allocated that risk through their negotiation. A party that chose not to include a force majeure clause — or did not notice its absence — will have difficulty arguing that the parties somehow intended performance to be excused.

**When Common Law Doctrines Step In.** As discussed in Section 04, impossibility, commercial impracticability, and frustration of purpose can excuse performance even without a force majeure clause. But the bar is high:

• *Impossibility* requires performance to be objectively impossible for everyone, not just the claiming party.
• *Impracticability* (UCC § 2-615 for goods) requires a contingency whose non-occurrence was a basic assumption of both parties, not just the claiming party, and whose occurrence makes performance commercially impracticable.
• *Frustration of purpose* requires near-total destruction of the contract's fundamental purpose — not merely that performance has become less valuable or profitable.

COVID-19 generated a wave of litigation testing these doctrines in the absence of force majeure clauses. Results were mixed but trending against the claiming party in most jurisdictions. Courts in New York, California, and Illinois consistently held that the pandemic did not make performance literally impossible (businesses could still deliver goods and services, if at higher cost); that the risk of business disruption was foreseeable (particularly post-February 2020); and that economic loss alone did not constitute impracticability.

**Industry-Specific Statutory Protections.** Some states have enacted specific statutory protections that operate like force majeure provisions in certain contexts. California's Civil Code provides implied excuses for certain government-ordered performance failures. Several states enacted temporary COVID-specific force majeure-type provisions during the pandemic that have since expired. These statutory protections are narrow and generally not a reliable substitute for contractual force majeure.

**The Practical Risk.** If you are entering a significant commercial relationship without a force majeure clause, you are effectively self-insuring against catastrophic disruption. The practical cost: if a natural disaster, pandemic, or government action prevents your performance, your counterparty can sue for breach of contract, seek expectation damages (the benefit of the bargain they would have received from your performance), consequential damages (if the contract permits them), and attorney fees (in contracts that include a prevailing party fee provision).

**When Absent Is Actually Intentional.** In some contexts — spot market transactions, financial contracts, commodity trades — force majeure is deliberately excluded. These are contracts where performance risk is the product being traded, and the ability to excuse non-performance would undermine the entire economic structure. If you see an explicit provision like the quoted clause above (acknowledging the absence of force majeure and making obligations absolute), treat it as a conscious allocation, not an oversight — and price the risk accordingly.

Force majeure is a matter of contract interpretation and common law, not a federally uniform doctrine. Courts in different states have developed meaningfully different approaches to force majeure enforceability, the relationship between force majeure clauses and common law doctrines, and the requirements for claiming excuse. The governing law clause in your contract determines which state's rules apply.

**New York.** New York courts apply a strict, contract-text-focused approach. Force majeure protection exists only for events explicitly listed in the clause — catch-all language like "other events beyond the party's control" is generally interpreted narrowly, not as an open-ended catch-all. New York courts consistently held during COVID-19 that pandemic-related disruptions were not covered under pre-2020 clauses that listed only natural disasters. Under New York law, financial hardship and increased costs are not impracticability — performance must be truly impossible. New York UCC provisions for goods contracts track the national standard but are applied with the same textual rigor.

**California.** California courts have historically been more receptive to force majeure and common law excuse defenses than New York. California Civil Code § 1511 provides a statutory excuse for performance when prevented by "irresistible, superhuman cause" or "operation of law." California courts apply a somewhat broader interpretation of force majeure catch-all language than New York. California was also more receptive to frustration of purpose defenses during COVID-19, particularly for event-related contracts where government orders completely eliminated the commercial purpose. However, California courts still require more than mere economic difficulty.

**Texas.** Texas courts take a middle-ground approach. Force majeure clauses are enforced based on their specific text, and the causation requirement is applied strictly — the force majeure event must be the proximate cause of the performance failure, not merely a contributing factor. Texas courts have been skeptical of COVID-19 force majeure claims but have recognized the doctrine where government closure orders directly prohibited the specific contracted performance. Under Texas UCC provisions, commercial impracticability requires a showing of "extreme and unreasonable difficulty."

**Illinois.** Illinois follows the contract-text approach and interprets force majeure clauses strictly. Courts require the event to be specifically listed, causation to be direct, and mitigation efforts to be demonstrated. Illinois courts during COVID-19 consistently denied force majeure claims under clauses that did not explicitly mention pandemics or government orders, even when performance was severely disrupted.

**Florida.** Florida enforces force majeure clauses according to their text and applies the common law impossibility doctrine narrowly. Florida courts have recognized that government orders issued in response to declared emergencies can qualify as force majeure events when the clause covers governmental actions, but require that the order directly prohibit (not merely make more difficult) the contracted performance.

**Massachusetts.** Massachusetts courts apply a somewhat more flexible standard to commercial impracticability than most states, allowing the doctrine when performance has become "unreasonably burdensome" in addition to impossible. Massachusetts was among the more receptive states to COVID-19-related excuse claims, particularly for contracts involving physical gatherings or activities prohibited by public health orders.

**Pennsylvania.** Pennsylvania follows a strict interpretation approach. Force majeure clauses are enforced only as written; implied coverage for unlisted events is rare. Pennsylvania courts require the claiming party to demonstrate both that the event was beyond their control and that they could not have anticipated it at the time of contracting.

**Georgia.** Georgia enforces force majeure clauses according to their text and requires the claiming party to demonstrate that the force majeure event was the direct cause of the failure. Georgia courts apply the "frustration of purpose" doctrine more liberally than impossibility, making it a viable alternative argument in some disruption scenarios.

**Washington.** Washington courts interpret force majeure clauses narrowly and require strict compliance with notice provisions. Failure to provide timely notice in Washington can result in complete waiver of the force majeure defense — Washington courts are less likely to excuse late notice than courts in some other states.

**Colorado.** Colorado applies a balanced approach, enforcing force majeure clauses according to their text while recognizing commercial impracticability under the UCC for goods contracts. Colorado courts have found COVID-19 government orders sufficient to trigger force majeure when government action was specifically included as a triggering event.

**Delaware.** Delaware courts, which govern many commercial contracts by choice of parties nationwide, apply a strict, text-based approach. Delaware is the most contractarian of jurisdictions — the text of the agreement is treated as the complete expression of the parties' intent, and courts are reluctant to read in protections not explicitly stated.

Force majeure provisions are not one-size-fits-all. The risk profile, timing sensitivities, and performance obligations differ significantly across industries, and a clause tailored for a technology services agreement will be inadequate in a construction contract — and vice versa.

**Construction.** The quoted provision above is a construction-specific force majeure model. Construction contracts are uniquely sensitive to force majeure because of complex scheduling dependencies: a delay caused by a force majeure event at week 4 can cascade through all subsequent phases, affecting subcontractors, materials procurement, permit expirations, and occupancy timelines. The key construction-specific issues:

• *Schedule extension vs. cost relief:* Most construction force majeure clauses grant schedule relief (extra time) but not additional compensation for the increased cost of performance during the disruption. This is a significant distinction — if materials costs triple due to supply chain disruptions, the contractor gets more time but still faces a compressed margin.
• *Weather conditions:* Standard construction force majeure clauses exclude "unusual weather" — ordinary bad weather is a foreseeable construction risk. They cover only "abnormal weather" that could not have been anticipated. The line between unusual and abnormal is a frequent source of dispute.
• *Notice windows:* Construction contracts typically use 10-day notice windows (shorter than commercial norms) because schedule impacts cascade quickly. Failure to provide timely notice often results in complete waiver.

**Events Industry.** Event contracts — venues, caterers, entertainment, audio-visual, photography — have unique force majeure dynamics because the contract's economic value is almost entirely time-specific. A cancelled wedding reception has zero residual value that can be realized on a different date. Force majeure provisions in event contracts must address: (1) partial performance compensation (if setup was completed before the force majeure event); (2) deposit and prepayment treatment (when does a vendor keep versus return a deposit?); (3) rebooking rights versus refund rights; and (4) the definition of "government order" in the context of venue capacity restrictions (which may make performance technically possible but economically worthless).

**Supply Chain and Manufacturing.** Supply agreements are the contracts most directly affected by upstream force majeure cascades. A semiconductor manufacturer's force majeure event can prevent an automotive company from completing vehicles, which prevents dealerships from fulfilling purchase contracts with consumers — a chain of force majeure impacts spanning multiple contractual relationships. Supply agreement force majeure clauses should address: (1) whether upstream force majeure at a supplier qualifies as force majeure for the buyer; (2) allocation of limited supply during disruptions (who gets priority?); (3) whether force majeure excuses the buyer from take-or-pay minimums; and (4) what constitutes adequate notification of potential supply disruptions before they become actual failures.

**SaaS and Technology.** SaaS agreements have a fundamentally different force majeure dynamic because the service is being provided continuously rather than through discrete deliverables. Key SaaS-specific issues: (1) SLA credits — does a force majeure event excuse the vendor from service level agreement commitments and associated credits? (2) Infrastructure failures — does a cloud provider's outage qualify as force majeure for the SaaS vendor, or is the vendor expected to architect for redundancy? (3) Data security during disruption — what are the vendor's obligations to protect customer data during a force majeure event? (4) Notice and transparency — SaaS customers are often monitoring service status in real time; how does force majeure notification interact with status page disclosure obligations?

**Real Estate.** Real estate contracts — purchase agreements, commercial leases, and construction loans — have specialized force majeure dynamics. Purchase agreement force majeure provisions must address: whether permit delays qualify as force majeure (courts are divided); whether financing market disruptions (sudden interest rate spikes, lender failures) excuse performance; and how contingency deadlines interact with force majeure extensions. Commercial lease force majeure has been heavily litigated post-COVID: most courts have held that inability to use leased premises (due to government restrictions) does not excuse rent payment obligations under traditional lease structures, because the landlord's obligation (to provide quiet enjoyment) was technically performed even if the tenant could not use the space. Post-2020 leases increasingly include explicit COVID-type provisions addressing rent deferral and abatement during government-mandated closures.

Force majeure is often treated as boilerplate — both parties sign whatever is in the template and move on. That approach leaves significant risk unaddressed. These are the most effective strategies for negotiating force majeure provisions that actually protect you.

**Negotiate the Event List Bilaterally.** The most common mistake in force majeure negotiation is focusing only on events you want to be able to invoke and ignoring what the other party might invoke to excuse their performance. Every category of force majeure event that protects the vendor also protects the client. When a client invokes force majeure to excuse their payment obligation (because their business operations were disrupted), the vendor may be owed nothing for work already completed. Negotiate the event list with both directions in mind.

**Distinguish Suspension from Termination — and Price Each.** A force majeure clause that only suspends performance (without termination rights) may trap both parties indefinitely. A clause that grants immediate termination rights eliminates the value of a long-term contract at the first major disruption. The commercially balanced approach: a grace period for suspension (during which the affected party is working to resolve the disruption and resume), followed by mutual termination rights if the disruption exceeds a defined threshold. Negotiate the threshold to reflect the actual value of performance certainty in the contract — a one-week catering contract needs a 72-hour threshold; a five-year software development agreement can tolerate a 180-day threshold.

**Add an Economic Events Carve-Out.** One of the most important protections for clients is an explicit exclusion of pure economic events from force majeure coverage. Without this carve-out, a vendor experiencing cost increases due to inflation, commodity price spikes, or labor market changes might argue that economic hardship qualifies as a force majeure event under catch-all language. Propose adding: "For the avoidance of doubt, the following shall not constitute force majeure events: changes in market prices, inflation, commodity price fluctuations, currency exchange rate changes, economic recession or downturn, or the financial inability of a party to perform."

**Negotiate Payment Treatment During Suspension.** The force majeure clause typically covers the obligation to perform but is often silent on payment obligations during the suspension period. This silence creates disputes: if the vendor cannot provide services, does the client still owe fees? Generally, clients argue no; vendors argue yes (for fixed-fee arrangements). Negotiate this explicitly: for subscription/license arrangements, fees typically continue; for service arrangements billed on delivery, payment should be suspended pro rata with the performance suspension.

**Define "Commercially Reasonable" Mitigation.** The mitigation obligation is often stated without definition, creating room for dispute about what constitutes sufficient effort. Negotiate specific mitigation obligations appropriate to your context: finding alternative suppliers within a defined geographic radius; spending up to a defined dollar amount on replacement resources; providing weekly updates on mitigation progress. Specific obligations are easier to satisfy than vague standards — and easier to prove compliance with in litigation.

**Include a Step-Down for Partial Performance.** In some force majeure scenarios, partial performance remains possible — a supplier can deliver 60% of the contracted quantity; a contractor can complete some phases but not others. A well-drafted clause addresses partial performance: how is payment adjusted for partial delivery? Does the client's obligation to accept partial performance mirror the vendor's obligation to provide it? A step-down provision that prorates both obligations based on what is actually delivered is fairer than an all-or-nothing approach.

**Consider Insurance Integration.** Force majeure risk does not exist in isolation from insurance. Business interruption insurance, supply chain insurance, and event cancellation insurance can provide financial protection for the same events covered by force majeure. Consider negotiating a clause that requires both parties to maintain applicable insurance and that insurance proceeds reduce the force majeure party's liability to the other. This creates symmetry: the party that maintains adequate insurance is better protected than one that relies solely on the force majeure clause.

The clause above is not a legitimate force majeure provision — it is an aggressive escape hatch that allows a vendor to suspend performance or reprice at will for essentially any reason. Recognizing abusive force majeure drafting is as important as understanding what a balanced clause looks like.

**Unlimited Scope Including Economic Events.** The clause above explicitly includes "economic conditions, market fluctuations, cost increases, supply constraints, or changes in business conditions" as force majeure events. These are not extraordinary, unforeseeable events — they are normal commercial risks that vendors are expected to price into their contracts. A force majeure clause that covers ordinary economic events transfers normal business risk to the customer. This is a fundamental misuse of the force majeure doctrine.

**Unilateral Right — No Reciprocity.** The clause is entirely one-sided: it protects only the Vendor. The customer has no corresponding right to invoke force majeure for events affecting their ability to pay or accept delivery. A genuine force majeure provision protects both parties from extraordinary events; a one-sided provision is simply a risk-shifting mechanism dressed up in force majeure language.

**Pricing Adjustment Right.** The clause allows the vendor to "increase pricing" upon 30 days' notice in addition to suspending performance. This conflates force majeure (excuse from performance) with price adjustment rights (a separate commercial negotiation). Legitimate force majeure clauses excuse delay or non-performance; they do not grant a right to reprice the contract. Including price adjustment within a force majeure clause obscures what is actually happening — a unilateral repricing right triggered by the vendor's convenience.

**30-Day Notice Without Termination Right.** The 30-day notice period allows the vendor to suspend performance with 30 days' notice, but the clause gives the customer no corresponding termination right. Without a termination right, the customer is left indefinitely suspended — unable to enforce performance and unable to exit the contract and find an alternative vendor. A balanced clause provides the customer with a termination right if suspension exceeds a defined threshold.

**No Causation Requirement.** The clause does not require any causal connection between the listed event and the performance failure. "Circumstances beyond Vendor's control" with no causation standard means almost anything qualifies. A legitimate force majeure clause requires the force majeure event to actually cause the failure to perform.

**No Mitigation Obligation.** The clause imposes no obligation on the vendor to minimize the disruption, find alternatives, or resume performance as quickly as possible. It simply creates an open-ended right to suspend. A proper clause requires the claiming party to demonstrate active mitigation efforts.