Force majeure clauses excuse performance when extraordinary events make contract completion impossible or impracticable. Traditional clauses listed wars, natural disasters, and government actions. The COVID-19 pandemic exposed gaps in these lists as parties disputed whether pandemics qualified. Modern force majeure drafting requires comprehensive event lists and clear performance suspension rules. AI-powered generators produce updated force majeure provisions instantly. Corporate counsel use these tools to draft pandemic-aware clauses protecting against extraordinary events.
Why Did COVID-19 Change Force Majeure Drafting?
Pre-pandemic force majeure clauses often listed specific events without including pandemics or epidemics. When COVID-19 disrupted performance, parties litigated whether it qualified. Courts split based on specific clause language. Clauses with explicit pandemic language excused performance. Clauses without faced interpretation battles over whether generic terms like "acts of God" or "government action" covered pandemic restrictions. This litigation demonstrated that force majeure requires specificity and that events once considered unlikely can materialize with contract-breaking consequences.
Modern force majeure clauses now routinely include pandemics, epidemics, public health emergencies, and government-ordered lockdowns or restrictions. These additions reflect lessons learned about which extraordinary events actually occur rather than theoretical possibilities. The drafting philosophy shifted from listing obviously catastrophic events to comprehensive catalogs covering all reasonably foreseeable extraordinary circumstances. This more protective approach costs nothing to include but provides significant insurance if unlikely events materialize.
- Pre-pandemic clauses often omitted pandemics from covered events
- COVID-19 litigation showed gaps in traditional force majeure language
- Modern clauses explicitly include pandemics and health emergencies
- Comprehensive event lists better protect against extraordinary disruptions
What Events Should Force Majeure Clauses Cover?
Comprehensive force majeure should include: acts of God (earthquakes, floods, hurricanes, wildfires), war, terrorism, riots, civil unrest, strikes, labor disputes, pandemics, epidemics, public health emergencies, government actions or restrictions, embargoes, material shortages, utility failures, cyber-attacks, and communication system failures. Follow the list with catch-all: "or other events beyond party's reasonable control making performance impossible or commercially impracticable." This combination of specific examples plus general category provides maximum protection.
Consider whether to include economic circumstances. Traditional force majeure excludes economic hardship, price increases, or market changes because these are normal business risks. However, extraordinary economic disruptions approaching commercial impossibility may warrant inclusion: "economic catastrophes making performance commercially impossible, but excluding normal market fluctuations or price changes." This careful phrasing protects against true economic impossibility while preventing parties from escaping deals that merely became less profitable. The line between extraordinary economic disruption and normal market risk requires careful drafting.
What Performance Relief Should Force Majeure Provide?
Force majeure suspends performance obligations during event duration but typically does not excuse them entirely. "Upon occurrence of Force Majeure Event, affected party's obligations shall be suspended for event duration, provided that party must resume performance within 30 days after event ceases." This suspension-not-termination approach preserves contracts while acknowledging temporary impossibility. It reflects that most force majeure events are temporary and performance can resume after resolution.
Include termination right for extended force majeure. "If Force Majeure Event continues for more than 90 days, either party may terminate this Agreement without liability." This escape valve prevents indefinite suspension when events prove permanent or near-permanent. The termination threshold (60 days, 90 days, 180 days) depends on contract type and how long parties can reasonably wait. Short-term service contracts need shorter thresholds. Long-term supply agreements can tolerate longer suspension before termination becomes appropriate.
What Notice and Mitigation Obligations Apply?
Force majeure should require prompt notice. "Party claiming Force Majeure must notify other party within 10 days of event occurrence, describing event and expected duration." Notice requirements prevent parties from using force majeure as excuse long after events have passed and allow affected parties to plan alternatives. Without notice requirements, force majeure becomes tool for escaping inconvenient obligations rather than legitimate protection against impossibility.
Include mitigation obligations. "Party claiming Force Majeure must use commercially reasonable efforts to mitigate event effects and resume performance as soon as reasonably possible." This prevents parties from using force majeure to avoid performance when workarounds exist. If supplier can obtain materials from alternative sources with reasonable effort, force majeure should not excuse delivery failures. Mitigation obligations ensure force majeure protects only against true impossibility, not mere inconvenience or increased cost.
Should Force Majeure Excuse Payment Obligations?
This is key negotiation point. Traditional rule: force majeure may excuse performance obligations but not payment obligations. "Force Majeure excuses performance but does not relieve payment obligations for work completed before Force Majeure Event." Rationale: paying party typically can still pay even if performing party cannot perform. However, some circumstances (government seizure of accounts, banking system collapse) may make payment impossible. Consider adding: "Force Majeure excuses payment only if event directly prevents ability to transmit payment."
For subscriptions and ongoing services, address whether customers must pay during force majeure suspension. "If Vendor cannot provide Service due to Force Majeure, subscription payments are suspended during non-performance period." This ties payment to performance. Alternative approach: "Force Majeure suspends Vendor's performance obligations but not Customer's payment obligations, provided that Customer receives service credits for non-performance period." This maintains cash flow while crediting customers for service interruptions. The economic allocation depends on which party bears force majeure risk.
How Do Force Majeure Clauses Interact With Other Provisions?
Force majeure and breach provisions must align. "Force Majeure Event is not breach of contract and does not give rise to damages claims or termination rights under breach provisions." This clarification prevents parties from treating force majeure suspension as material breach triggering termination or damages. Force majeure is distinct from breach and should be governed by its specific provisions, not general breach remedies.
Address relationship with warranty disclaimers and limitation of liability. "Limitation of Liability provisions survive even during Force Majeure Events. Neither party shall be liable for consequential damages arising from Force Majeure." This ensures liability limitations continue during extraordinary events rather than falling away when they matter most. Force majeure excuses performance but does not expand liability for consequences beyond non-performance. These provisions work together to create comprehensive risk allocation framework.
Use River's legal writing tools to generate force majeure clauses efficiently. AI assistance handles comprehensive event lists and modern drafting standards including pandemic coverage. Better tools mean faster drafting and protection against extraordinary events. The result is professional provisions reflecting current best practices and pandemic lessons.
AI-powered force majeure generation produces pandemic-aware clauses instantly. By selecting contract type and risk allocation preferences, corporate counsel get comprehensive provisions ready to paste into agreements. Contract drafters benefit from updated language reflecting COVID-19 lessons, complete event lists, and balanced relief mechanisms. The technology handles modern drafting standards while humans make strategic decisions about relief extent and termination thresholds. This division of labor ensures contracts include essential protection against extraordinary events that once seemed unlikely but have proven very real.