The short version
- Force majeure normally excuses performance that has been prevented, not performance that has become unprofitable. Increased cost on its own is almost never enough.
- Notice is usually a condition precedent. A party with a genuinely excusing event can lose the excuse entirely by serving notice late, vaguely, or to the wrong address.
- Whether an unlisted event is covered turns on the catch-all wording and the jurisdiction. New York reads these clauses narrowly; other states are more willing to cover unforeseen events.
- If the contract has no force majeure clause, common law offers only impracticability and frustration of purpose, and both are considerably harder to win than a drafted clause.
Common-law contracts have no implied force majeure doctrine. Whatever relief exists is the relief the parties wrote down, which is why two companies hit by the same event can end up in completely different positions. Civil-law systems generally do have a statutory concept, so a contract governed by the law of one of those countries needs a different analysis.
What the clause is actually doing
A force majeure clause has three moving parts, and readers usually only look at the first. The trigger is the events that qualify. The effect is almost always suspension of the affected obligations while the event lasts, plus a right to terminate if it runs beyond a stated period. The conditions are notice, mitigation and evidence.
Two things it usually does not do. It rarely excuses payment: most drafting carves out sums already due, on the reasoning that a bank transfer is not prevented by a hurricane. And it does not cancel the contract — suspension is the default, so the obligation returns when the event passes, often into a market that has moved on.
Two questions decide a force majeure claim
Effect on performance
Is the event within the clause?
Not listed
Listed or within the catch-all
Harder or costlier
No relief
The ordinary commercial case. Renegotiate, or perform at a loss.
Still no relief
Naming the event does not help while performance remains possible.
Prevented
Argue the catch-all
Turns on the wording and the governing law. Uncertain in both directions.
The clause bites
And notice and mitigation now decide whether the relief survives.
Why "act of God" rarely covers the event you are invoking it for
"Acts of God, war, riot, fire, flood" is inherited wording, and the instinct behind it is to add a sweeping catch-all — "or any other cause beyond the reasonable control of the parties". Courts do not read that as broadly as the drafter hoped. The rule usually applied is ejusdem generis: general words at the end of a specific list cover things of the same kind as the listed items, not everything imaginable.
The pandemic litigation shows both edges of this. In JN Contemporary Art LLC v. Phillips Auctioneers LLC (2d Cir., 23 March 2022) an auction house terminated under a clause covering "natural disaster, terrorist attack, nuclear or chemical contamination" and any "circumstance beyond our or your reasonable control". The court held COVID-19 and the New York closure orders were the same kind of large-scale disruption as the listed events, so the termination stood. Clauses built around narrower, more physical events failed on the same facts.
Exhaustive or illustrative: the two words that decide the argument
The difference between a closed list and a list of examples is a phrase most readers skip over.
| Wording | What it means | Who it favours |
|---|---|---|
| "means the following events:" | Exhaustive. Nothing outside the list qualifies, however extreme. | The party who wants certainty — usually the customer |
| "includes, without limitation, the following:" | Illustrative. The list is examples; the catch-all does real work. | The party who might need to invoke it — usually the supplier |
| "any event beyond the reasonable control of the affected party" | A pure catch-all. Broad on its face; courts test control and foreseeability hard. | Neither — this is the wording that produces litigation |
| "including epidemics and pandemics" | Post-2020 standard. Removes the ejusdem generis argument for that one category. | The party who might need to invoke it |
Check one more thing while you are there: whether the clause runs both ways. A supply agreement that excuses the supplier for events beyond its control while saying nothing about the buyer is a one-way clause, and it belongs on the same list as every other asymmetry in the document. The supply agreement clause checklist sets out what a balanced version covers.
Notice and mitigation are the real gate
This is where otherwise good claims die. Most clauses require notice within a short window, in a specified form, describing the event and its expected duration — and most treat that notice as a condition precedent to any relief at all. Serve it late and the excuse can be gone however genuine the event was. Courts split on how strictly to enforce that, which is not a position you want to argue from.
The clock a force majeure clause actually runs
Day 0
The event occurs
Or the day the affected party became aware of it — the clause usually says which, and the two dates are rarely the same.
Day 3–14
Notice deadline
Typically a condition precedent. Must identify the event, the obligations affected, and the likely duration.
Ongoing
Duty to mitigate
Reasonable endeavours to work around the event, plus updating notices in many clauses.
Day 30–180
Termination right
Once the event has run for the stated period, one or both parties can usually walk away.
How far mitigation goes was settled for English-law contracts in RTI Ltd v MUR Shipping BV [2024] UKSC 18. Sanctions made contractual payment in US dollars impossible; the other side offered euros plus the conversion cost. The Supreme Court held that a "reasonable endeavours" proviso aims at achieving the contractual bargain, not at substituting a different one, so the affected party was not required to accept non-contractual performance absent clear wording. Mitigation means trying hard to perform the deal you signed, not accepting a new one.
Service agreement template
A complete service agreement with a two-way force majeure clause — a defined trigger, notice with a stated window, mitigation, and a termination right if the event runs long. Edit it and export.
Does economic hardship count? Almost never
This is the most common misreading of the clause, and it is expensive. Sale-of-goods law states the principle bluntly: the official commentary to UCC § 2-615 says increased cost alone does not excuse performance unless the rise in cost is due to some unforeseen contingency that alters the essential nature of the performance, and that a rise or collapse in the market is exactly the business risk a fixed-price contract is intended to cover.
The 2025–26 tariff disruption ran straight into this. The analysis was the same as it had been for fuel, freight and raw materials before it: a tariff makes performance more expensive, not impossible, so unless the clause names change in law or government action as a trigger — and many now do — there is generally no relief. The remedy for cost risk is a price adjustment mechanism, an index, a change-in-law clause or a hardship clause, each negotiated in advance.
What post-2020 drafting actually changed
Four changes are now close to standard in commercially drafted contracts, and their absence in a 2026 agreement tells you the clause was copied from an old precedent.
- Epidemic and pandemic named expressly, usually alongside "quarantine" and "public health emergency", so nobody has to argue about whether a virus is a natural disaster.
- Government action split out from the physical events. In 2020 most businesses could physically perform and were legally forbidden to. Clauses now list orders, closures, capacity restrictions and travel bans in their own limb.
- Supply chain treated explicitly, because the default rule is that a supplier's own supplier failing is not force majeure unless the clause says so.
- Consequences spelled out: which obligations are suspended, whether the customer may source elsewhere during the suspension, and who bears the cost of restarting.
What happens when the contract says nothing
What is left are two narrow doctrines, and the difference between them is whether performance became impossible or merely pointless.
No force majeure clause: the two remaining doctrines
The event happened and the contract has no force majeure clause
Performance became impracticable
Impracticability: the event's non-occurrence must have been a basic assumption of the contract. UCC § 2-615 for goods. Cost increases do not qualify.
Performance is possible but worthless
Frustration of purpose: the event must destroy the principal purpose both sides understood. Narrow, and rarely successful outside total closure.
Frustration did occasionally succeed after 2020. In UMNV 205-207 Newbury, LLC v. Caffé Nero Americas, Inc. (Mass. Super. 2021) a café tenant whose lease permitted only a sit-down café "and for no other purpose" was excused rent while the state banned on-premises dining. That was the exception: most commercial tenants lost, and in AGW Sono Partners, LLC v. Downtown Soho, LLC (Conn. 2022) the tenant failed because the lease did not stop it trading as takeaway. The pattern is narrow — frustration works where the lease itself forbade the only remaining way of trading.
What to ask for when the clause is still negotiable
Five edits worth making before signature
- Make the clause mutual — check "affected party" actually covers both sides.
- Add epidemic, pandemic, government order and change in law as named triggers, and exclude the named triggers from any foreseeability qualifier.
- Set a workable notice window — 10 business days rather than 48 hours — and confirm the method the notices clause requires.
- Add a termination right on both sides once the event has run 30 or 60 days.
- Confirm what the customer may do during a suspension: source elsewhere, suspend payment, or neither. This is the line most often missing.
One last check that costs nothing. Force majeure interacts with the clauses either side of it: an excused supplier owes you nothing under the limitation of liability clause, and an indemnity can keep running through a suspension unless it is carved out. Read the three together, the way how to read a contract properly sets out. In technology deals the SaaS agreement and software licence templates show where the clause sits relative to the service levels it silently overrides.
Sources
- Cornell LII — force majeure (Wex)
- Cornell LII — UCC § 2-615, excuse by failure of presupposed conditions
- JN Contemporary Art LLC v. Phillips Auctioneers LLC (2d Cir. 2022)
- Slaughter and May — RTI Ltd v MUR Shipping BV [2024] UKSC 18
- Baker McKenzie — force majeure and doctrines excusing performance (April 2025)
- Harvard Law — how commercial tenants fared on frustration of purpose after COVID
General information, not legal advice. This guide explains how these documents and rules generally work. Law varies by jurisdiction and changes, and none of it is applied to your circumstances here. For anything consequential, consult a licensed attorney where you are.
Frequently asked
Does a force majeure clause cover a supplier price increase?
Almost never. The standard test is whether performance was prevented, and a price rise leaves performance entirely possible. Sale-of-goods commentary is explicit that a market movement is the business risk a fixed-price contract exists to allocate. If input cost is a genuine risk in your contract, the answer is an index-linked price adjustment or a hardship clause, negotiated at the start.
Is COVID-19 or another pandemic automatically a force majeure event?
No. It depends on the wording. Clauses drafted after 2020 usually name epidemics and pandemics expressly, which settles it. Older clauses turn on whether the catch-all covers an unlisted event of that kind, and courts split on that. Where the obstacle was a government closure order rather than the disease itself, a clause covering government action is often the stronger argument.
What happens if I miss the force majeure notice deadline?
Potentially you lose the excuse. Most clauses make notice a condition precedent to relief, so a late or defective notice can defeat a claim that would otherwise have succeeded. Some courts accept substantial compliance where strict compliance was impossible, but that is a defence, not a plan. Serve the notice by the prescribed method and address on the day you become aware.
Does force majeure excuse payment of money that is already owed?
Usually not. Well-drafted clauses expressly carve out accrued payment obligations, and even without that carve-out courts are reluctant to accept that paying money was prevented rather than made difficult. The practical effect is that a supplier can be excused from delivering while the customer remains obliged to pay for what has already been delivered.
Can I get out of a contract if there is no force majeure clause?
Only through impracticability or frustration of purpose, and both are narrow. Each requires an event whose non-occurrence was a basic assumption of the deal, and neither is available where the contract already allocated that risk. In practice most parties in this position negotiate a variation or a wind-down rather than litigate, because the doctrines fail far more often than they succeed.