1.  Introduction
 
When parties sign a contract, they expect each other to perform their agreed obligations. However, a force majeure event can render performance impossible, impracticable, or fundamentally unfair. The French phrase “force majeure” means “superior force” in English.[1] Examples of force majeure include natural disasters (such as fires, floods, or earthquakes) and human-caused disruptions (such as wars, strikes, or government actions). In brief, a force majeure event is an exceptional circumstance that neither party could reasonably foresee at the time of contracting. A force majeure clause is a contractual tool that allocates the risk of non-performance between contracting parties when a force majeure event prevents one party from performing its contractual obligations. In this essay, we briefly cover what a force majeure clause does and its typical elements.
 
2. Function
 
A force majeure clause functions as a private risk-allocation tool, allowing parties to negotiate in advance how to allocate risks when an external event beyond their control disrupts performance. The COVID-19 pandemic, for instance, highlighted the importance of force majeure clauses and compelled practitioners to scrutinize these clauses, transforming them from overlooked boilerplate into a point of risk negotiation. A force majeure clause enables parties to prospectively define excusable non-performance, thereby offering certainty in the event of a crisis. By incorporating this clause into a contract, parties establish a contractual safe harbor that supplants the often rigid or unpredictable default rules of the governing law. This mechanism transforms a potential breach of contract into an excusable non-performance, preserving business relationships during unforeseen disruptions and allowing businesses to transact with greater confidence.
 
3.  Typical Elements of a Force Majeure Clause
 
In our observation, a force majeure clause typically includes the following elements: (1) a definition of triggering events; (2) requirements for causation and degree of impact; (3) notice and other procedural requirements; (4) a description of the consequences of invocation; and (5) mitigation duties. These elements work together to create a clear path for addressing disruptive events. A force majeure clause without any of these elements is not necessarily invalid. Nonetheless, a comprehensive provision incorporating all these elements better protects the parties’ interests.
 
3.1 Triggering Events
 
Many force majeure clauses define the specific events that trigger their application. Typically, a force majeure clause enumerates a non-exhaustive list of events (such as earthquakes, fires, or changes in law), often supplemented by a general catchall phrase (such as “other events beyond the reasonable control of the parties”). This hybrid approach balances the predictability of an enumerated list with the flexibility of a catchall provision to address genuinely unforeseen circumstances.
 
3.2 Causation and Degree of Impact
 
The occurrence of a triggering event does not automatically excuse performance. A force majeure clause requires a causal link between the event and the non-performance, and a specified degree of impact. A key consideration is whether the triggering event makes performance impossible or merely creates a material hindrance. Force majeure clauses often use verbs like “prevent,” “hinder,” “impede,” or “delay,” which establish the threshold for relief. “Prevent” suggests a high threshold of impossibility, while “hinder,” “impede,” or “delay” sets a lower threshold where performance becomes substantially more difficult but is not necessarily impossible. A force majeure clause may distinguish between full prevention and mere delay, providing different remedies for each scenario.
 
3.3 Notice and Other Procedural Requirements
 
Some force majeure clauses require the party invoking them to comply with certain procedural requirements. The most critical procedural requirement is prompt notice, which requires the affected party to inform the other party of the force majeure event and its expected impact, often within a specified timeframe and by a required method (such as a written notice with supporting documentation). Timely notice allows the other party to mitigate its own damages and prevents belated assertions of force majeure. Failure to provide the required notice may limit or even waive the right to relief. Some force majeure clauses also require status updates and cessation notices. Clear procedural requirements promote transparency and ensure that a force majeure clause is invoked in good faith to address genuine impediments, not as a pretext for opportunistic non-performance.
 
3.4 Consequences of Invocation
 
When a party successfully invokes a force majeure clause, the typical consequence is the suspension of its performance obligations without liability for the duration of the event. The non-performing party is thus shielded from liability for breach of contract, provided all procedural requirements are met. The other party’s counter-performance obligation may likewise be suspended. Force majeure typically suspends rather than terminates a contract, with the expectation that performance will resume once the impediment ceases. To avoid indefinite suspension, some force majeure clauses permit either party to terminate the contract when the force majeure event persists beyond a specified period. Additionally, a force majeure clause excuses future performance but not obligations that accrued before the occurrence of force majeure. Furthermore, some contracts explicitly exclude monetary obligations from force majeure relief, as financial hardship alone generally does not constitute force majeure.
 
3.5 Mitigation Duties
 
A critical but sometimes overlooked element is the requirement that the invoking party use reasonable efforts to mitigate the impacts of the force majeure event and resume performance as soon as practicable. Some force majeure clauses that require mitigation efforts specify that a failure to undertake such mitigation efforts can undermine a force majeure claim. In such cases, the party seeking force majeure relief must diligently document its mitigation efforts. Conditioning relief on diligent mitigation ensures that a force majeure clause protects the invoking party from true impossibility, while still requiring reasonable efforts to overcome obstacles.
 
4. Conclusion
 
While contractual sanctity is paramount, a force majeure clause offers a necessary exception when unforeseen events disrupt carefully planned arrangements. A force majeure clause is not a mechanism for avoiding inconvenient obligations, but rather offers a negotiated way to address crises that fall beyond the parties’ reasonable control. Force majeure clauses have transformed from overlooked boilerplate into actively negotiated provisions integral to modern contracts. Instead of relying on generic boilerplate, contracting parties benefit most when they proactively negotiate and tailor a force majeure clause to their specific transaction, industry, and risk preferences. A well-drafted force majeure clause does more than excuse non-performance. It can help preserve the relationships between the parties by providing certainty and a path forward in the face of unforeseeable disruptions.