What Is a Force Majeure Clause?

Force majeure is a French term that literally means "superior force." In contract law, a force majeure clause excuses a party from performing their obligations when certain extraordinary events make performance impossible or impractical.

You've probably heard the phrase in the context of Covid-19, when businesses everywhere tried to invoke force majeure to get out of contracts. The results were mixed — because force majeure clauses are only as strong as the events they specifically cover.

How force majeure works

Unlike some legal systems, English law has no general doctrine of force majeure. There is no implied force majeure protection in a contract. If your contract doesn't have a force majeure clause, you don't have force majeure protection — simple as that.

What English law does have is the doctrine of frustration, which can excuse performance when a contract becomes impossible to perform. But frustration has a very high bar and rarely applies. Force majeure clauses in contracts are usually broader and easier to invoke.

What a force majeure clause typically looks like

The key phrase is "beyond that party's reasonable control." The list of events is illustrative, not exhaustive — but courts will look closely at whether the event that occurred is of the same type as those listed.

What to check in any force majeure clause

1. What events are covered?

Some force majeure clauses are narrow (only natural disasters), others are broad (anything beyond reasonable control). Broader is generally better for the party invoking it. If you're providing services, you want broad force majeure protection. If you're paying for services, you want narrow force majeure — otherwise the supplier can use any excuse to delay.

2. What obligations does it excuse?

Some clauses excuse performance entirely. Others merely suspend it. Others excuse performance but require the affected party to give notice and use reasonable efforts to overcome the event. Check carefully what actually happens when force majeure is invoked.

3. What about payment obligations?

Many force majeure clauses do not excuse payment obligations. Even if a supplier can't deliver, you may still be contractually required to pay. Check this explicitly.

4. How long can it last?

Well-drafted force majeure clauses include a time limit — after 30, 60, or 90 days of force majeure, either party can terminate the contract. Without this, one party could theoretically invoke force majeure indefinitely.