Force Majeure Clause: Definition, Key Elements, and How It Works

Most well-drafted clauses use a hybrid structure: a specific list of qualifying events plus a catch-all phrase for other circumstances beyond reasonable control. The specific list gives certainty; the catch-all provides flexibility.

CATEGORY	COMMON EXAMPLES
Natural disasters	Earthquakes, floods, hurricanes, wildfires
War and armed conflict	Armed conflict, terrorism, civil unrest
Government actions	Lockdowns, embargoes, export restrictions, sanctions
Public health emergencies	Epidemics, government-declared pandemics
Infrastructure failure	Power grid failures, cyberattacks on critical systems
Labor disputes	Strikes, industrial action (where explicitly included)

Economic downturns, market volatility, supplier price increases, or general supply chain delays (unless caused by a named event). Courts have been consistent on this point across jurisdictions.

Courts have been split. Where a clause explicitly listed “pandemic,” “epidemic,” or “government orders,” claims have often succeeded. Where parties relied on catch-all language alone, results were inconsistent (JN Contemporary Art LLC v. Phillips Auctioneers LLC, 2d Cir. 2022, is instructive here; the specific “government action” language was what carried the argument).

The answer depends on how the clause is worded. Courts generally treat the economic consequences of government action as foreseeable, even if the specific tariff wasn’t anticipated. Where a clause explicitly covers “government action” or “change in law,” the argument is significantly stronger.

For legal teams managing contracts with ESG or climate-related obligations, the intersection of force majeure unforeseeability and regulatory disclosure requirements is worth tracking. The American Bar Association has analyzed whether SEC climate-risk disclosure rules affect how “unforeseeable” is interpreted in force majeure provisions, a question that will become more pressing as climate-related disruptions increase in frequency.

See which of your contracts are missing force majeure protection. DiliTrust CLM’s Advanced Search scans your entire contract database by clause type, identifying every agreement without a force majeure provision in under two minutes.

Incomplete force majeure provisions are common. Here are the six elements that every enforceable clause needs to include.

1. Definition of qualifying events
   Specify events explicitly. A catch-all phrase alone, “events beyond reasonable control,” has frequently been rejected by US courts as too vague to trigger relief. Use an illustrative list first, then add a catch-all to capture unforeseen categories that weren’t enumerated.
2. Notice requirements
   This is where more force majeure claims fail than anywhere else. Specify the notice period (e.g., within 5 business days of the event), the required format (written, certified mail, or email with confirmation), and who must receive it. Missing the contractual window typically forfeits the right to invoke the clause outright, regardless of how legitimate the disruption was.
3. Causation standard
   There’s a real legal difference between “caused by,” “solely caused by,” and “directly caused by.” The first is broad; the event need only be one contributing factor. The second is narrow; the event must be the exclusive cause. The third is intermediate, requiring a proximate causal link. Courts in New York interpret causation language strictly. Choosing “solely caused by” in a supply chain contract, for example, dramatically narrows your protection.
4. Mitigation obligations
   Most clauses require the affected party to take reasonable steps to minimize the impact and duration of the event. Courts expect documented mitigation efforts. If you made no attempt to source an alternative supplier, reroute a delivery, or work around the disruption, the clause may offer little protection.
5. Scope of relief
   Be explicit about which obligations the clause suspends. Does it cover delivery only, or all performance obligations? Does it suspend payment? (Courts are skeptical of suspending payment obligations.) Spell out what is covered, and what isn’t.
6. Governing law
   Force majeure is interpreted differently by jurisdiction. New York applies one of the narrowest standards in the US. Delaware, Texas, and California each have their own tendencies. For cross-border contracts, note that French law (Article 1218 of the Civil Code) has a codified standard that differs meaningfully from US common law, a distinction that matters for any agreement with European counterparties.

Here is a baseline clause template that covers the core elements:

Force Majeure: Neither party shall be liable for any failure or delay in performance under this Agreement to the extent such failure or delay results directly from causes beyond the reasonable control of that party, including but not limited to acts of God, war, terrorism, government orders or regulations, epidemics or pandemics declared by a competent authority, cyberattacks on critical infrastructure, or labor disputes not caused by the affected party (each, a “Force Majeure Event”). The party affected by a Force Majeure Event shall: (i) provide written notice to the other party within five (5) business days of the occurrence; (ii) describe the nature of the event and its expected duration; (iii) use commercially reasonable efforts to mitigate the impact; and (iv) resume performance as soon as practicable after the event concludes. If a Force Majeure Event continues for more than sixty (60) consecutive days, either party may terminate this Agreement upon ten (10) days’ written notice without further liability.

Three things worth noticing in this template: the event list is illustrative, not exhaustive (the “including but not limited to” language is intentional); the notice window is short (5 business days); and the termination right triggers at 60 days. All three are negotiating points and should be tailored to your specific transaction and risk profile.

One rule dominates US force majeure jurisprudence: courts read these clauses narrowly.

In Kel Kim Corp. v. Central Markets, Inc. (NY, 1987), New York’s Court of Appeals established the standard that has governed ever since: the clause must specifically enumerate the event at issue, or the event must fall clearly and unmistakably within the catch-all language. Broad disruption alone is not enough.

In JN Contemporary Art LLC v. Phillips Auctioneers LLC (2d Cir. 2022), a force majeure claim succeeded because the clause explicitly included “government action,” which covered the COVID-19 lockdown orders directly. The catch-all supported the argument, but the specific enumeration won it.

In In re Hitz Restaurant Group, the court applied the force majeure clause to COVID-19 capacity restrictions, but only partially. Because performance was limited rather than made entirely impossible, the affected party still owed partial performance.

The practical implication: vague clauses favor the party opposing the force majeure claim. Specific clauses favor the party invoking it. That asymmetry is why drafting quality is not a formality.

Two common law doctrines can provide relief, but both are harder to invoke than a well-drafted clause and require court intervention to establish.

Available for contracts for the sale of goods. Performance is excused when a contingency occurs whose non-occurrence was a basic assumption of the contract, and the contingency wasn’t the seller’s fault. The bar is high: the event must make performance genuinely impracticable, not merely more expensive.

This doctrine applies when the principal purpose of the contract is substantially frustrated by an event neither party could have anticipated. This is narrower still. If the frustration is partial, the contract is simply less valuable now, courts generally won’t apply the doctrine.
Neither common law doctrine reliably substitutes for a written clause. And even where available, they require litigation to establish, whereas a properly drafted clause gives you a clear contractual right with defined procedures.

When a force majeure event hits (a sudden trade embargo, a supply chain breakdown, a government lockdown) the legal team faces a specific and time-sensitive problem. You need to know which contracts are affected, which are missing force majeure protection, what notice obligations are triggered and when, and which obligations can be suspended.

In a traditional setup, answering those questions means manually reviewing shared drives, email threads, and disconnected repositories. For a legal team managing hundreds of active agreements, that could take days. In a crisis, days aren’t available.

DiliTrust CLM solves this directly. Its advanced search works across your entire contract database, combining structured metadata with clause-level criteria. You can run a query for every Master Service Agreement where a force majeure clause is not present and identify your exposed contracts in minutes rather than days, fast enough to brief leadership while the disruption is still unfolding.

The clause library stores your standard force majeure language as a reference provision, tagged and categorized by risk level. When a third-party contract arrives with modified force majeure language, Risk Detector flags the deviation and suggests compliant edits; a side-by-side “Compare to reference” view surfaces your preferred language so the gap is clear at a glance.
And when a force majeure event is actually invoked, the Task & Obligation Management module helps legal teams track notice deadlines and performance milestones, so the right notices are sent on time, not lost in an inbox.