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Force Majeure Clause

A contractual provision that excuses performance when an extraordinary event prevents one or both parties from fulfilling their obligations.

Reviewed by GC AI Solutions Team•Updated August 2026

Definition

A force majeure clause is a contractual provision that excuses one or both parties from performing their obligations when an extraordinary event beyond their control prevents performance. Common triggers include natural disasters, war, government action, and pandemics. Courts interpret these clauses narrowly, so the clause only excuses performance for events specifically listed in the contract or events of a similar kind.

  • Excuses delayed or missed performance when an extraordinary event prevents it
  • Names the qualifying events: acts of God, war, government action, pandemics, cyber incidents
  • Defines the notice and mitigation duties for the party invoking it
  • Sets the suspension period and the point at which either party can terminate
  • Decides whether fees keep accruing while performance is suspended

Pandemic and cyber-incident language has become far more common in force majeure clauses drafted since 2020.

What It Does

A force majeure clause allocates the risk of non-performance when a defined extraordinary event prevents or delays a party's performance. For in-house counsel, it decides whether your counterparty is excused, and for how long, when they cannot deliver. Courts, especially in New York, construe these clauses narrowly: they enforce the events the parties listed, and where a catch-all applies, events of a similar kind. So the operative question is whether the trigger list reaches the disruptions your business faces. A practical test: if the listed events would not have covered the March 2020 shutdowns, the clause is drafted too narrowly for the risks you carry today.

When You'll See It

Force majeure shows up in almost every commercial contract: SaaS agreements, vendor MSAs, leases, services contracts, supply agreements, and most M&A definitive documents. It sits at the back, in "miscellaneous" or "general provisions," next to notices and governing law. The wording varies most in long-term supply and SaaS, where the supplier has the most to gain from a broad trigger list.

It matters most where continuity is the whole point: a sole-source supplier, a critical software vendor, an event with a fixed date. The more your business depends on the other side showing up, the harder you read the trigger list and the termination window.

Examples

DK Trading & Supply, LLC / Delek Logistics Operating, LLC

Amended and Restated Throughput AgreementBroad triggerMutual2024
"Force Majeure means acts of God, strikes, lockouts or other industrial disturbances, acts of a public enemy, wars, terrorism, cyberattacks, blockades, insurrections, riots, storms, floods, washouts, arrests, the order of any court or Governmental Authority having jurisdiction while the same is in force and effect, civil disturbances, explosions, fires, leaks, releases, breakage, accident to machinery, storage tanks or lines of pipe, inability to obtain or unavoidable delay in obtaining material or equipment, inability to obtain Materials because of a failure of third-party pipelines, and any other causes whether of the kind herein enumerated or otherwise not reasonably within the control of the party."
Source

CPI Innovation Services Limited / SmartKem Limited

Framework Supply AgreementBroad triggerMutual2024
"Event of Force Majeure means in relation to any Party, any circumstances beyond the reasonable control of that Party including, but not limited to: (i) fire, flood, explosion, pandemic, epidemic, terrorism, war, riots, official national declared industrial action, government action or injunction; (ii) inability to obtain, or shortage of, fuel, power, gas, specialist replacement equipment, transportation or materials, accident to, or breakage of machinery or apparatus; (iii) strikes or labour disputes; (iv) any safety or emergency overrides; (v) lack of availability of key technical and scientific staff due to unexpected illness."
Source

Creative Venture Capital LTD / Jubilee Intel, LLC

Agreement for the Supply of Introductory Services & Financing PartnersBroad triggerMutual2024
"Force Majeure Event means any circumstance beyond the reasonable control of the parties including, but not limited to acts of God, fire, explosion, adverse weather conditions, flood, earthquake, terrorism, riot, civil commotion, war, hostilities, strikes, work stoppages, slow-downs or other industrial disputes, accidents, riots or civil disturbances, acts of government, lack of power and delays by suppliers or materials shortages."
Source

BiBo Biopharma Engineering Co., Ltd. / 89bio, Inc.

Project Collaboration AgreementPandemic carve-out (excludes COVID-19)Mutual2024
"Neither Party shall be liable for any failure or delay in the performance of any of its obligations hereunder to the extent such performance is delayed or affected by any earthquake, floods, land-slides, or such other acts of God, war, civil disorder, fire, insurrections, riots, epidemics, pandemics (other than the COVID-19 pandemic), terrorist attack, general, widespread strikes or lockouts, general, widespread shortage of materials, orders, injunctions or directions of government..."
Source

Coinbase Crypto Services, LLC / 21Shares Ethereum ETF (the Trust)

Master Infrastructure-as-a-Service AgreementBroad trigger, payment-obligation carve-outMutual2025
"Neither party shall be liable for any failure or delay in the performance of its obligations under this Agreement (except payment obligations) to the extent such performance is made impractical and inadvisable, directly or indirectly, without fault by such party, by any reason beyond its reasonable control, including but not limited to, fire, flood, earthquake, elements of nature or acts of God, acts of state, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, quarantines, pandemics, embargoes, changes in law, and other similar governmental action..."
Source

Exagen Inc. / Deb Zack

Independent Contractor AgreementNarrower trigger + notice and mitigation dutyMutual2022
"Neither party shall be liable for any failure or delay in the performance of its obligations due to fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorder, rebellions, or other similar cause beyond the reasonable control of the party affected, provided such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented, and provided further that the party hindered or delayed immediately notifies the other party describing the circumstances causing delay."
Source

Negotiate

If you're the customer

You want performance

  • Name cyber incidents, pandemics, and supplier-of-supplier failures in the trigger list. Do not rely on the catch-all phrase.
  • Require notice within 5 to 10 business days, drafted as a condition to invoking the clause, so a late claim is waived.
  • Insist on a mitigation obligation. Without it, your vendor has no reason to resume.
  • Add a termination right after 30 to 60 days of suspension so you keep an exit.
  • Suspend fees during the suspension. You should not pay for performance you did not get.

If you're the supplier

You want optionality

  • Keep the trigger list broad. Push for "any cause beyond the reasonable control of the affected party" as the operative phrase.
  • Push the notice window to 15 to 30 business days. Operational triage takes time.
  • Resist explicit fee-suspension language. Negotiate partial fees to cover fixed costs.
  • Cap your liability for inability to perform during a force majeure event, separate from the broader limitation of liability clause.

The clause your counterparty hands you is rarely the one that gets signed. Treat their first draft as a starting position.

Red Flags

  • A trigger list that includes “economic hardship,” “market conditions,” or “increased cost of performance.” These turn force majeure into a margin-protection clause for the supplier.

  • No notice or mitigation obligation, which makes the clause a free pass.

  • A termination right available to the supplier but withheld from the customer.

  • “Force majeure” defined to include any breach by the supplier's own subcontractors, which pushes supply-chain risk back onto you.

  • No fee-suspension language paired with a long suspension window, so you pay for nothing.

Force Majeure Clause FAQs

What is a force majeure clause?
A force majeure clause is a contractual provision that excuses one or both parties from performing their obligations when an extraordinary event beyond their control prevents performance.
What is the difference between force majeure and impossibility of performance?
Force majeure is a provision the parties write into the contract. Impossibility is a common-law doctrine courts apply when no clause exists. A force majeure clause generally overrides the common-law doctrine, so what the contract says controls.
How do you invoke a force majeure clause?
The affected party gives written notice to the counterparty within the timeframe stated in the contract, usually 5 to 15 business days from the event. The notice should describe the event, its impact on performance, and the expected duration.
Does a force majeure clause have to be in writing?
In commercial contracts, yes. Force majeure is a contract-based defense, so the clause has to exist in the written agreement to apply. The common-law doctrine of impossibility may still apply without a clause, but the standard is higher.
Can a force majeure clause excuse payment obligations?
Rarely. Most courts hold that an inability to pay due to financial hardship is not a force majeure event. Force majeure typically excuses performance, not payment.
Does COVID-19 count as force majeure?
It depends on the clause. Contracts that listed “pandemics” or “epidemics” generally qualified. Contracts that listed only “natural disasters” or “acts of God” produced split rulings, with most courts reading the trigger list strictly.

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This content is for informational purposes only and does not constitute legal advice.