What Is Force Majeure?
Force majeure is a contractual clause that excuses a party from performing their obligations when extraordinary events beyond their control make performance impossible or impractical.
Key Takeaways
- Force majeure is a contractual clause — if your contract does not contain one, it does not automatically apply.
- The clause must be triggered by a qualifying event that was unforeseeable and beyond the party's control.
- Force majeure typically suspends rather than terminates obligations; termination rights usually arise only after a prolonged period.
- Where there is no force majeure clause, the doctrine of frustration may apply in narrower circumstances.
What force majeure means
Force majeure (from the French for 'superior force') is a provision in a commercial contract that excuses one or both parties from performing their obligations — without being in breach — when an extraordinary event beyond their control makes performance impossible, impractical, or illegal. Common force majeure events listed in contracts include natural disasters (floods, earthquakes), war and terrorism, pandemics, government actions (such as import bans or lockdowns), and industrial action by third parties. Unlike the French civil law concept from which the term derives, force majeure under English law is entirely contractual — if your contract does not include a force majeure clause, it does not automatically apply. English common law has its own doctrine — frustration — but this has a much higher threshold.
What a force majeure clause actually does
A force majeure clause typically operates in three stages. First, the clause sets out the qualifying events that can trigger it — the more precisely these are defined, the more predictable the clause is. Second, it specifies the consequences of a triggering event: usually, the affected party is excused from performing the affected obligations for the duration of the force majeure event. Most clauses require the affected party to give prompt written notice to the other party, take reasonable steps to mitigate the impact of the event, and resume performance as soon as the event ends. Third, many clauses include a long-stop provision: if the force majeure event continues for more than a defined period (commonly 30 to 90 days), either party may terminate the contract, usually without liability for the non-performance during the period.
COVID-19 and the limits of force majeure
The COVID-19 pandemic prompted a significant reassessment of force majeure clauses in many SME contracts. Courts in England and Wales took a relatively strict approach: force majeure clauses were held to apply only where performance was genuinely impossible or illegal (for example, a venue that was legally closed during lockdown), not merely more difficult or expensive. Contracts that predated the pandemic's emergence in 2020 were more likely to succeed in force majeure arguments; contracts signed after January 2020 faced arguments that a pandemic was foreseeable and could have been catered for. The practical lesson is that force majeure clauses should be reviewed and updated regularly to ensure they address the types of disruption your business actually faces.
Frustration as an alternative
Where a contract does not contain a force majeure clause, the English common law doctrine of frustration may provide relief — but the bar is high. A contract is frustrated when, through no fault of either party, an event occurs after the contract is formed that makes performance impossible, illegal, or fundamentally different from what was originally agreed. Mere commercial hardship or increased cost does not frustrate a contract. When a contract is frustrated, the Law Reform (Frustrated Contracts) Act 1943 governs how money paid before frustration is recovered and how any partial performance is valued. Given the high threshold for frustration, businesses are better protected by including a carefully drafted force majeure clause in their contracts than by relying on this doctrine.