Force Majeure Clause Explained: What It Means for Your Contracts (2026 Guide)

What Is a Force Majeure Clause in a Contract?

A force majeure clause is a contract provision that excuses one or both parties from performing their obligations when an extraordinary event beyond their control makes performance impossible or impractical. The term is French for "superior force." The clause allocates risk by defining in advance which unexpected events will suspend, delay, or terminate contractual duties — and what the affected party must do to claim that protection.

Key takeaways

• Force majeure only applies if the contract explicitly includes the clause; there is no automatic legal protection without one in U.S. common law jurisdictions.
• The event must be unforeseeable, beyond the party's control, and must directly prevent performance — not merely make it more expensive.
• Courts interpret force majeure clauses strictly and narrowly, especially in New York and other common law states.
• Failing to follow the clause's notice and mitigation requirements can invalidate an otherwise valid force majeure claim.
• COVID-19 litigation and the 2025 tariff wave have reshaped how attorneys draft these clauses, with far more specificity now standard practice.

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What Events Qualify as Force Majeure?

Not every setback triggers a force majeure clause. For an event to qualify, it must satisfy three core requirements.

Requirement	What courts look for	Common failure mode
Unforeseeable	The event could not reasonably have been predicted when the contract was signed	A hurricane in Florida during hurricane season may not qualify
Beyond party's control	The party claiming relief did not cause or contribute to the event	Self-inflicted disruptions never qualify
Directly prevents performance	The event makes performance objectively impossible, not merely more expensive	Increased costs alone are consistently rejected

Events Typically Listed in a Force Majeure Clause

Most well-drafted clauses enumerate specific triggering events, including:

• Natural disasters — earthquakes, floods, wildfires, hurricanes
• Acts of war and civil unrest — declared or undeclared wars, terrorism, riots, embargoes
• Government actions — new laws, executive orders, sanctions, emergency declarations
• Pandemics and epidemics — widespread disease outbreaks, government-ordered shutdowns
• Labor disruptions — strikes, lockouts, labor stoppages outside the party's control
• Infrastructure failures — extended power grid outages, critical internet failures

What Doesn't Qualify

Courts consistently reject force majeure claims based on economic hardship alone. The Legal Information Institute at Cornell notes that "mere impracticality or unanticipated difficulty is not enough to excuse performance" and that courts "generally do not recognize economic downturn as a force majeure event." Similarly, a supplier experiencing higher input costs because of market fluctuations cannot invoke force majeure simply because the deal became less profitable.

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How a Force Majeure Clause Is Structured

A well-drafted clause has five core components:

1. Definition of Qualifying Events

The clause should list specific triggering events explicitly — either as an exhaustive list or as an illustrative list followed by a narrow catch-all phrase such as "other events of a similar nature that render performance objectively impossible." Vague language like "unforeseen circumstances" routinely fails in court; judges in New Jersey, New York, and Minnesota have all confirmed that specificity is required for enforceability.

2. Notice Requirements

The affected party must notify the other party in writing — promptly after the event occurs — specifying the nature of the event, how it impacts performance, and the expected duration of the disruption. Failure to give proper notice on time can invalidate an otherwise valid claim even if the event genuinely qualifies.

3. Mitigation Obligations

The party invoking force majeure is almost always required to take reasonable steps to minimize the disruption and resume performance as soon as possible. In Mieco LLC v. Pioneer Natural Resources USA Inc. (5th Cir., July 2024), the court found genuine factual disputes over whether Pioneer exercised sufficient due diligence during Winter Storm Uri before excusing its failure to deliver contracted natural gas — a case that underscores just how seriously courts scrutinize mitigation efforts.

4. Consequences: Suspension vs. Termination

The clause must specify what happens when it is invoked. Options include:

• Suspension — obligations pause until the event ends, then resume
• Extended deadlines — performance timelines shift without penalty
• Termination rights — if the event persists beyond a defined period (e.g., 90 or 180 days), either party may end the contract without liability

5. Carve-Outs for Payment Obligations

Many contracts explicitly carve out payment obligations from force majeure protection. Courts have enforced these carve-outs strictly — in In re CEC Entertainment, Inc. (Bankr. N.D. Ill. 2020), the Chuck E. Cheese operator could not use force majeure to avoid rent because the clause expressly stated that "lack of money shall not be grounds for Force Majeure."

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How Courts Interpret Force Majeure: Key Cases

Courts interpret force majeure clauses based on the exact language written into the contract. Here is how interpretations have developed across major jurisdictions.

Jurisdiction	Approach	Notable rule
New York	Strict / narrow	Only events explicitly listed in the clause qualify (Kel Kim Corp. v. Central Markets, Inc.)
California	Somewhat broader	May allow broader interpretations under certain circumstances
Minnesota	Language controls	Courts enforce the specific rights and remedies stated, not implied ones
New Jersey	Narrow / ejusdem generis	Unlisted events must be of the "same general nature or class" as listed events
Delaware	Contract language governs	Follows contractual terms closely; well-developed commercial case law
England & Wales	Very strict	Courts focus on "precise construction" of the clause; economic hardship almost never excuses performance

COVID-19 and Force Majeure Litigation

The pandemic produced the largest body of force majeure case law in decades. Courts generally construed clauses narrowly: absent pandemic-specific language, the pandemic alone did not automatically trigger most force majeure provisions. However, in JN Contemporary Art LLC v. Phillips Auctioneers LLC, the Second Circuit Court of Appeals held that COVID-19 and the government orders barring non-essential business excused performance under a clause that listed "natural disaster" — a meaningful win for parties whose contracts used that term. The key lesson from COVID-19 litigation: the parties who successfully invoked force majeure were those who could draw a direct, documented causal connection between the specific event and their inability to perform — not those citing general economic hardship from the pandemic.

Tariffs and Force Majeure in 2025–2026

The 2025 trade war has pushed force majeure back into the spotlight. In April 2025, Reuters reported that at least one aircraft component supplier declared force majeure in response to President Trump's tariff announcements. Courts and legal practitioners have consistently observed that tariff increases alone generally do not qualify as force majeure, because changes in government economic policy are considered foreseeable business risks — and fixed-price contracts are designed precisely to allocate that kind of risk. However, a force majeure clause that specifically lists "governmental action," "tariffs," "import/export restrictions," or "trade embargoes" may give the affected party grounds for relief if performance has been rendered impossible (not merely more costly). Attorneys drafting international contracts today are increasingly adding explicit tariff language rather than relying on generic "acts of government" catch-alls.

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How to Invoke a Force Majeure Clause: Step by Step

If you believe a force majeure event has occurred, take these steps immediately — sequence matters.

1. Locate your contract's force majeure clause. Read the exact language, including any definitions, notice deadlines, and mitigation obligations. Also check the governing law clause, since interpretation varies by state.
2. Assess whether the event qualifies. Does it appear on the listed triggering events? If not, does a catch-all phrase cover it? Be honest: courts are unforgiving with claims that stretch contract language.
3. Document the impact. Gather evidence that the event directly prevents your performance — not just makes it harder or more expensive. Records, government orders, supplier communications, and financial data all matter.
4. Send formal written notice. Follow the clause's notice requirements precisely — method (email, certified mail), timing, and content. Include the event description, its impact, and your expected duration of impaired performance.
5. Take mitigation steps and document them. Make genuine, reasonable efforts to work around the disruption. Courts reward documented mitigation and penalize parties who sat on their hands.
6. Communicate with the other party. Keep them informed. Courts and arbitrators look favorably on good-faith transparency.
7. Consult an attorney before terminating. If you intend to end the contract entirely under force majeure, get legal review first. Wrongly invoking force majeure can itself constitute a breach.

For contracts involving ongoing services or master agreements, review how indemnification clauses and limitation of liability provisions interact with your force majeure rights — they often overlap in a crisis scenario. When building new contracts from scratch, Pactlio's AI agents can generate a services agreement or master services agreement that includes a tailored force majeure clause reviewed against your specific deal context.

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Force Majeure vs. Related Legal Doctrines

If your contract has no force majeure clause — or the clause doesn't cover your situation — you may fall back on three common law doctrines. Understanding the differences is critical.

Doctrine	Source	Applies when	Key limitation
Force majeure	Contract clause	Event is listed in the clause and directly prevents performance	Only available if the clause exists in the contract
Impossibility / Impracticability	Restatement (Second) § 261; UCC § 2-615	Performance has become objectively impossible or extremely impracticable due to an unforeseeable event	Strict standard; economic hardship rarely qualifies
Frustration of purpose	Restatement (Second) § 265	An unforeseeable event destroys the principal purpose of the contract, even if performance is technically possible	Must show the fundamental purpose is wholly undermined, not merely impaired
Supervening illegality	Common law	A new law or government order makes the contracted performance illegal	Requires actual illegality, not just difficulty

The frustration doctrine is a common law backstop — it excuses a party not because performance is impossible, but because the entire reason for entering the contract has been destroyed. For example, a vendor contracted to provide services at a trade show that is subsequently cancelled by government order may have a frustration argument even if the clause doesn't specifically cover cancellations. Importantly, when parties include a force majeure clause, courts in many jurisdictions hold that the clause supersedes the impossibility doctrine — so the clause's specific terms control, not the broader common law standard.

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Jurisdiction Notes: How Force Majeure Differs Around the World

System	How force majeure works	Key distinction
U.S. common law	Entirely contractual — must be in the written clause	No statutory default; doctrines of impracticability and frustration serve as backstops
UCC (goods contracts, U.S.)	§ 2-615 provides limited statutory impracticability protection	Does not require a force majeure clause but covers a narrow range of events
English law	Strict construction; frustration doctrine exists but is rarely granted	Economic adversity almost never excuses performance; clause wording is paramount
French civil law (origin)	Codified in Civil Code Art. 1218; three-part test: unforeseeable, irresistible, external	Broader than U.S. common law; forms the conceptual basis for the term
CISG (international goods)	Art. 79 provides an "impediment" defense for international sales	Narrower than most force majeure clauses; does not excuse consequential damages
UNIDROIT PICC	Art. 7.1.7 defines hardship and force majeure separately	Distinguishes mere hardship (renegotiation) from true force majeure (excuse)

For contracts that cross borders, the governing law clause determines which framework applies — see our deeper guide on international contracts and jurisdiction for how to think through that choice.

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Common Mistakes to Avoid

• Using boilerplate language without review. Generic "act of God" language copied from another contract may not cover the specific risks in your deal. COVID-19 litigation made this painfully clear to thousands of businesses.
• Omitting notice deadlines. Failing to specify when notice must be given — or missing the deadline once an event occurs — can kill an otherwise valid claim entirely.
• Forgetting mitigation obligations. Courts expect affected parties to make genuine efforts to minimize the disruption. Undocumented or absent mitigation is one of the most common reasons force majeure defenses fail.
• Confusing "harder" with "impossible." Increased costs, supply delays, or reduced profitability are not force majeure events unless the clause explicitly says so. Performance must be genuinely prevented.
• Leaving out termination triggers. Without specifying how long a suspension can last before termination rights arise, parties can be stuck in indefinite limbo — a recipe for expensive disputes.
• Not updating clauses after major global events. Post-pandemic and post-2025 tariff contracts should explicitly address pandemics, epidemics, government-declared emergencies, and trade-related governmental actions by name.

Understanding how force majeure interacts with your termination clause and what makes a contract legally binding in the first place will help you build a more resilient agreement overall.

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Sources

• Cornell Law School Legal Information Institute — Force Majeure: https://www.law.cornell.edu/wex/force_majeure
• Restatement (Second) of Contracts §§ 261, 265: https://www.ali.org/publications/show/restatement-law-contracts/
• UCC § 2-615 (Excuse by Failure of Presupposed Conditions): https://www.law.cornell.edu/ucc/2/2-615
• JN Contemporary Art LLC v. Phillips Auctioneers LLC, No. 20-4829 (2d Cir. 2021): https://casetext.com/case/jn-contemporary-art-llc-v-phillips-auctioneers-llc-1
• Mieco LLC v. Pioneer Natural Resources USA Inc., 5th Cir. (July 16, 2024): https://www.spencerfane.com/insight/force-majeure-clauses-in-natural-gas-contracts-fifth-circuit-provides-guidance/
• Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900 (1987): https://law.justia.com/cases/new-york/court-of-appeals/1987/70-n-y-2d-900-0.html
• In re Hitz Restaurant Group, 616 B.R. 374 (Bankr. N.D. Ill. 2020): https://casetext.com/case/in-re-hitz-rest-grp
• Skadden — Navigating the Impact of Trump Tariffs on Commercial Contracts (2025): https://www.skadden.com/insights/publications/2025/06/insights-june-2025/navigating-the-impact-of-the-trump-tariffs
• K&L Gates — Impact of Tariffs on Commercial Contractual Performance (April 2025): https://www.klgates.com/Impact-of-Tariffs-on-Commercial-Contractual-Performance-Can-Tariffs-Be-a-Force-Majeure-Event-4-28-2025
• Quinn Emanuel — U.S. Tariffs and Potential Contract Disputes (2025): https://www.quinnemanuel.com/the-firm/publications/u-s-tariffs-and-potential-contract-disputes/
• World Bank PPP — Force Majeure Clauses Checklist and Sample Wording: https://ppp.worldbank.org/sites/default/files/2024-09/Forcemajeurechecklist.pdf

This article is general information, not legal advice. Laws vary by jurisdiction. Pactlio generates professional drafts for review — have a licensed attorney review anything important.