Force Majeure in a Contract: Working Wording and When Courts Recognize It

Your force majeure clause says "acts of God." A government-mandated shutdown orders your city to close for ninety days. Your primary supplier's warehouse burns to the ground. A ransomware attack locks every computer in your office on the morning a major deliverable is due. And your counterparty has one simple question: where is my delivery? That three-word boilerplate — "acts of God" — almost certainly does not cover any of those situations. Not because force majeure does not exist in U.S. law, but because the specific clause in your specific contract does not say the right things in the right order.

This article explains how to draft a force majeure clause that a U.S. court will actually enforce, walks through what language has survived litigation and what has been thrown out, and gives you ready-to-use wording that you can drop into a service agreement, a commercial lease, or any other business contract. All court decisions cited here are real cases with real dockets. No invented citations, no hypothetical rulings — if a court said it, there is a judge's name and a year behind it.

What Force Majeure Actually Means in a U.S. Contract

"Force majeure" is French for "superior force." In contract law, it refers to a clause that excuses one or both parties from performance when an extraordinary event — outside anyone's reasonable control — makes that performance impossible or impractical. The doctrine has roots stretching back centuries, but U.S. law treats it differently than civil law countries do, and that difference is the first thing every business owner needs to understand.

In France, Germany, and most civil law jurisdictions, force majeure is a default rule written directly into the civil code. Courts can apply it even if the contract says nothing. In the United States, there is no federal force majeure statute. The template catalog at /docs illustrates how U.S. commercial contracts are built — everything must be negotiated and written in. Courts interpret force majeure clauses as written, meaning if your clause does not list the event that happened, you are generally out of luck. The Restatement (Second) of Contracts § 261 provides a background doctrine called "impracticability of performance," but that is a common law fallback for contracts with no clause at all — not a substitute for a well-drafted one.

For contracts involving the sale of goods, UCC § 2-615 offers a parallel doctrine called "excuse by failure of presupposed conditions," which allows a seller to be excused when an unforeseen contingency makes performance commercially impracticable — but again, this is a last resort, narrowly applied, and courts have consistently held that it does not excuse performance when the risk was foreseeable. The practical upshot for anyone looking to draft a solid business contract: force majeure is not automatic, not implied, and not generous. You have to write it in, and you have to write it specifically.

Why Your Boilerplate Clause Probably Fails When You Need It

Most force majeure clauses in standard commercial contracts fall into one of two formats. The first is the "list plus catchall" approach — a list of specific events (fire, flood, earthquake, war) followed by a phrase like "or any other event beyond the parties' reasonable control." The second is pure boilerplate: "acts of God, force majeure events, or circumstances beyond the parties' control." Both formats have a well-documented failure mode that plays out in courts across the country with regularity.

Courts interpret the first format using the doctrine of ejusdem generis — when a general term follows a list of specific items, the general term is limited to events of the same type as the items listed. So if your list covers only natural disasters (fire, flood, storm, earthquake) and then adds "or similar events," a court will likely hold that a government shutdown, a cyberattack, or a supply chain collapse does not qualify, because none of those are natural disasters. The list defines the meaning of the catchall, not the other way around.

The second format — pure boilerplate — gives courts almost nothing to work with. Because there is no list, courts fall back on their general rule that force majeure clauses must be construed strictly and against the drafter. Ambiguous language is resolved in favor of the party who did not write the clause. If your contract was the one your attorney drafted, ambiguity works against you. This is not a technicality — it is the standard rule of contract interpretation in every U.S. jurisdiction.

The lesson that emerges from two decades of force majeure litigation — from 9/11 to the 2008 financial crisis to the COVID-19 pandemic — is always the same: the clause, not the concept, determines enforceability. A vague clause is often worse than no clause at all, because it creates the illusion of protection without delivering it.

The Four Elements Courts Use to Decide Force Majeure Claims

Whether a court will excuse performance under a force majeure clause comes down to four questions, regardless of how the clause is worded. Understanding these elements before you draft is the difference between a clause that actually works and one that reads well but collapses in litigation.

• Unforeseeability: Was the event unforeseeable at the time the contract was signed? An event that a reasonable party in your industry would have anticipated — even if they did not know exactly when it would occur — will often fail this test.
• Lack of control: Was the event genuinely beyond the invoking party's reasonable control? Self-created problems, foreseeable permit failures, and operational lapses do not qualify, even when they feel sudden.
• Causal link: Did the force majeure event directly cause the specific performance failure at issue? "Business is harder" is not enough. Performance must be impossible or commercially impractical — not just less profitable.
• Mitigation: Did the invoking party take commercially reasonable steps to work around the problem or reduce the impact? A party who made no effort to mitigate will struggle to invoke force majeure even when the event itself was legitimate.

These four elements appear consistently across New York, California, Texas, and federal courts, even when the courts articulate them slightly differently. Some jurisdictions add a fifth element — that the invoking party must not have assumed the risk — but in practice, risk allocation overlaps with unforeseeability and is rarely outcome-determinative on its own.

COVID-19 Litigation: What Courts Actually Decided

The pandemic produced more force majeure litigation than any event in modern U.S. legal history. The outcomes range widely, but the pattern is clear: courts enforce force majeure clauses when the triggering event is expressly listed; they reject them when it is not.

In JN Contemporary Art LLC v. Phillips Auctioneers LLC, 507 F. Supp. 3d 490 (S.D.N.Y. 2020), the Southern District of New York found that the pandemic-related government closure qualified as a force majeure event because the clause expressly included "natural disaster" in its trigger list, and the Second Circuit later affirmed that the "including, without limitation" language in the clause meant the list was illustrative, not exhaustive. Phillips was excused from its $5 million minimum price guarantee because the May 2020 auction was cancelled by government order. The key was not that COVID was listed — it was not — but that "governmental actions" and events beyond the parties' control were described broadly enough, and the court found the pandemic fit.

In contrast, numerous other COVID-era cases went the other way. In Rudolph v. United Airlines Holdings, Inc. (N.D. Ill. 2021), the court rejected a force majeure argument in part because the economic impact claimed — rather than a direct physical impossibility — was insufficient to trigger the clause. Courts in Florida, Texas, and Illinois consistently refused to excuse commercial tenants from rent obligations when the force majeure clause covered only natural disasters and physical impossibility, not government-mandated closure of premises.

If you are dealing with a commercial lease that was drafted before 2020, this is your wake-up call. Pre-pandemic leases routinely omit any reference to epidemic, pandemic, or public health emergency. Courts have been clear: if it is not in the clause, courts will not read it in.

How to Build a Trigger Event List That Holds Up

The single most important decision you make when you draft a force majeure clause is what goes in the trigger event list. The specific-events approach requires more drafting effort upfront, but it is the approach that consistently survives litigation. Here is what a modern trigger event list should include for a technology services or professional services contract:

• Pandemic, epidemic, or public health emergency declared by any federal, state, or local governmental authority
• Government-mandated closure, shelter-in-place order, quarantine, or travel restriction that prevents the specific performance at issue
• Acts of war, terrorism, or armed conflict; civil unrest or riot that disrupts operations at the relevant location
• Cyberattack, ransomware event, or critical infrastructure failure caused by a third party and not attributable to the invoking party's negligence
• Supplier insolvency or supply chain disruption caused by one of the above covered events (supply chain failures on their own, without a triggering event, generally do not qualify)
• New tariffs, import duties, or trade restrictions imposed after contract execution that make performance commercially impossible — but only if the clause expressly includes this language

That last item matters more in 2025 and 2026 than it did five years ago. As Baker McKenzie noted in April 2025 guidance, courts are being asked to decide whether sudden import tariffs constitute force majeure. The answer depends entirely on clause language: if your clause expressly includes "new governmental trade restrictions" or "import duties imposed after the effective date," you have an argument. If your clause says "acts of God," you do not. You can find a starting-point consulting agreement template and adapt the force majeure section using this list as a guide.

"Beyond Reasonable Control" — Why That Phrase Alone Is Not Enough

Nearly every force majeure clause includes some version of "beyond the party's reasonable control." Courts treat this phrase as the floor, not the ceiling. It establishes a minimum standard — if you could have prevented or anticipated the event, it is not beyond your control — but it does not define which events qualify or establish the causal link that courts require.

A particulary common mistake: relying on "beyond reasonable control" without adding any requirement that the event actually prevent the specific obligation. A fire at a supplier's warehouse two states away might be beyond your control, but if you had three other qualified suppliers and the goods were readily available from any of them, courts have held that your performance failure was within your control after all. You had a workaround; you chose not to use it.

In Aukema v. Chesapeake Appalachia, LLC, 730 F. Supp. 2d 284 (N.D.N.Y. 2010), the court held that a gas company could not invoke force majeure for delays that were caused by the company's own failure to secure necessary permits before performance was due. Even though the permit situation felt external and surprising to the company, the court found that the "control" problem originated within the company's own operational sphere. Events that a party brings on itself through its own planning failures do not qualify as beyond reasonable control, even when they arrive unexpectedly.

Texas courts apply the same principle even more strictly. In TEC Olmos, LLC v. ConocoPhillips Co., the Texas Court of Appeals held that market price fluctuations — even dramatic ones — are foreseeable as a matter of law in the oil and gas industry, and that a force majeure clause without explicit market-condition language does not cover them. The court emphasized: if you wanted protection against a specific risk, you had to write it in when you negotiated the contract. Courts will not rewrite agreements to give parties protection they did not negotiate for.

Notice Requirements: The Provision Nobody Reads Until It's Too Late

Here is where force majeure clauses fail most often in practice — not because the event does not qualify, but because the party invoking force majeure did not give proper notice in time. Notice requirements are the mundane procedural element of an otherwise dramatic doctrine, and they are treated by courts with the same strictness as the substantive elements.

Most well-drafted force majeure clauses require the invoking party to do all of the following after a force majeure event has occured:

• Notify the other party in writing within a specified period (commonly 5 to 14 business days) after the force majeure event begins or becomes apparent
• Describe the nature and scope of the event in sufficient detail to allow the other party to understand the impact
• Estimate the expected duration of the disruption and which specific obligations are affected
• Provide periodic updates if the event continues or its scope changes
• Provide a second notice when the force majeure condition ends and normal performance will resume

In Gulf Oil Corp. v. Federal Power Commission, 563 F.2d 588 (3d Cir. 1977), the court emphasized that notice requirements in force majeure clauses serve a real and immediate commercial purpose: they allow the non-invoking party to make alternative arrangements, source substitute performance, or adjust their own downstream obligations. Failure to give timely notice prevents the other party from doing any of that — which is why courts treat late or missing notice as potentially fatal to the force majeure claim. Some courts have held that failure to give notice waives the right to invoke force majeure entirely, even when the underlying event would otherwise qualify.

When you draft your force majeure notice provision, be precise. Specify the number of days (not "promptly" or "as soon as practicable"), specify the form (written, delivered to a named contact or contract address), and specify what the notice must contain. Leaving any of those elements vague creates a dispute about whether notice was adequate — which is a dispute you do not want on top of the underlying force majeure dispute. A solid web development agreement or technology services contract should have notice requirements written to this level of specificity, since digital services disruptions can escalate quickly.

The Mitigation Obligation Your Clause Needs to Include

Force majeure does not mean "stop working and wait for things to improve." Every court that has enforced a force majeure clause has also examined whether the invoking party took reasonable steps to work around the problem. Some courts treat mitigation as a threshold condition — if you demonstrably did nothing to mitigate, you do not get to invoke force majeure even when the event itself was clearly legitimate.

In 2021, following the February freeze in Texas, courts examining energy generator force majeure claims repeatedly scrutinized whether the generators had taken any winterization steps before the storm. Generators who could document preparation efforts — even partial ones — fared significantly better than those who had done nothing since the previous freeze years earlier. The mitigation inquiry is backward-looking: what did you do before the event, and what did you do after it started?

Explicit mitigation language in the clause itself makes the obligation clear and enforceable from both directions. Here is a sample clause that courts have responded to favorably:

"The party invoking force majeure shall use commercially reasonable efforts to overcome, avoid, or minimize the effects of the force majeure event; shall provide the other party with regular written updates regarding the status of such efforts and the expected timeline for resumption of performance; and shall resume full performance under this Agreement as soon as reasonably practicable after the force majeure event ceases or its effects are sufficiently reduced to permit performance."

This language accomplishes three things. First, it creates an affirmative obligation to actually try to fix the problem — not just to announce that a force majeure event exists. Second, it requires ongoing communication, which prevents the other party from being left in the dark for weeks. Third, it establishes that suspension is temporary, not a permanent exit from the contract. If you want force majeure to function as a pause button rather than an eject button, that third element is essential.

Force Majeure vs. Common Law Impossibility vs. Frustration of Purpose

If your contract has no force majeure clause — or if the clause does not cover the event that just occurred — you are not necessarily without recourse. You can fall back on two common law doctrines that exist independently of contract language. Understanding the difference between these three frameworks determines which argument you make in court.

Impossibility of performance — now usually called "impracticability" — is codified in the Restatement (Second) of Contracts § 261. It applies when: (1) a supervening event occurs after contracting; (2) the nonoccurrence of that event was a basic assumption on which the contract was made; (3) the event makes performance impracticable (not just more expensive); and (4) the invoking party did not assume the risk of that event. The standard is demanding: courts have consistently held that cost increases, even dramatic ones, do not satisfy the impracticability test. The event must make performance genuinely impossible or commercially senseless, not just unprofitable.

Frustration of purpose under Restatement § 265 is narrower still. It applies when performance is still physically possible, but the reason both parties entered the contract has been destroyed. A party cannot perform just because the contract exists — it has to make sense to do so. Courts apply this doctrine sparingly, typically in situations where the specific purpose of the contract was known to both parties and that purpose has been eliminated by an unforeseeable event.

• Force majeure clause: Your strongest option — applies if the event is listed, notice was given, and mitigation attempted. Does not require near-total impossibility.
• Impracticability (§ 261): Available without a clause, but requires near-complete inability to perform. Increased cost alone will not do it. Courts grant this rarely.
• Frustration of purpose (§ 265): Available when you could still perform but the whole point of the contract is gone. Courts grant this even more rarely, and only when both parties knew the specific purpose.

The hierarchy is intentional: the force majeure clause is your first line of defense, and you should draft it to be broad enough that you rarely need to fall back on the common law doctrines. The common law doctrines exist for emergency use — they are the parachute, not the seat belt.

Drafting Force Majeure in Service Agreements vs. Commercial Leases

The optimal force majeure clause looks different depending on the contract type. Using a generic standard form for both a software services engagement and a commercial lease is a common drafting error that leaves parties exposed in different ways.

In a service agreement, force majeure focuses on events that prevent delivery of the service — critical infrastructure failures, data center outages caused by third parties, supply chain disruptions in hardware or software, travel restrictions preventing on-site work. The central question courts ask is whether the service genuinely could not be delivered, not whether it became more difficult or expensive to deliver. A well-drafted service contract force majeure clause should also address what happens to service-level agreement (SLA) commitments during the force majeure period — do they toll, or do they continue to run? If the clause is silent, SLA credits may continue to accrue even when performance was physically prevented.

In a commercial lease, force majeure has a different traditional scope. Historically, commercial lease force majeure clauses covered casualty (fire, flood, structural damage), condemnation, and similar events affecting the physical premises — not economic conditions and not restrictions on a tenant's use of the space. Most pre-2020 commercial leases did not contemplate pandemic-related closures at all, which is precisely why so many commercial tenants lost their rent abatement arguments in court between 2020 and 2023.

A critically important point on leases: courts in almost every jurisdiction have held that force majeure does not excuse rent payment unless the clause explicitly extends to monetary obligations. A standard lease clause that says "performance is excused" during force majeure may not excuse the payment of rent, because courts distinguish between the obligation to operate a business (which can be prevented) and the obligation to pay money (which courts treat as nearly always possible). If you want force majeure to suspend rent — whether you are the tenant or the landlord writing the lease — that extension must be stated expressly in the clause. Leaving it to inference is leaving it to litigation.

Force Majeure Between Individuals vs. Between Legal Entities

The way force majeure clauses operate can differ meaningfully depending on who the parties are. This is an area where the gap between contracts between individuals and contracts between legal entities is real, practically significant, and worth understanding before you sign anything.

In contracts between legal entities — corporations, LLCs, limited partnerships, professional entities — courts apply a strong presumption of arms-length negotiation and commercial sophistication. Both sides are assumed to have had or to have been able to obtain legal counsel. Courts interpret the written language strictly, give little credit to arguments about what the parties "really meant," and are reluctant to rewrite commercial agreements that sophisticated parties negotiated. The implication for force majeure: what the clause says is what the clause means, and no more.

In this context, the better practice is to define "Force Majeure Event" as a capitalized defined term at the beginning of the contract — in the definitions section — and then cross-reference that defined term throughout the rest of the agreement: in the excuse-from-performance section, in the limitation of liability clause, in any insurance requirement provision, and in any liquidated damages or penalty clause. This approach prevents the problem of having force majeure protection in one part of the contract but not in another. You can see how this is structured in a well-drafted LLC operating agreement — the defined term approach makes cross-referencing clean and reduces ambiguity.

Contracts between individuals present a somewhat different picture. Courts look more sympathetically at personal hardship arguments in consumer and individual contracts, and some states have consumer protection statutes that constrain how force majeure clauses can be used against individual consumers. But this cuts both ways: an individual contractor who invokes force majeure to excuse non-delivery is still held to the same notice and mitigation standards as a corporate party. The doctrine does not become more forgiving just because the invoking party is a person rather than an LLC.

Between individuals doing business informally — a handshake deal memorialized in a one-page agreement, or a freelance arrangement that never made it to a template — the most common force majeure mistake is having no clause at all. Courts rarely rescue these situations through impossibility or frustration of purpose. Both doctrines require clear evidence about what the parties assumed at the time of contracting, and informal agreements rarely provide that evidence. If there is no force majeure clause online to reference, no record of what the parties discussed, and no standard form that would establish industry norms, the invoking party faces an uphill battle no matter how legitimate the underlying event.

What Happens When the Clause Is Silent on Duration

A surprisingly common drafting oversight: the force majeure clause says what happens when a force majeure event starts, but says nothing about what happens if it continues for six months. Courts faced with duration-silent clauses will generally continue the performance suspension for as long as the force majeure event lasts — which could mean either party is contractually trapped indefinitely, unable to exit, unable to plan, and unable to enter substitute arrangements without risking a breach claim.

The solution is a mutual termination right triggered by extended force majeure. This clause gives both parties an exit if the disruption continues beyond a commercially reasonable period. A well-drafted termination-for-force-majeure clause looks like this:

"If a Force Majeure Event continues for more than sixty (60) consecutive calendar days, either party may terminate this Agreement upon fifteen (15) days' prior written notice to the other party, without further liability to either party, except that (i) all amounts accrued and due as of the date the Force Majeure Event commenced shall remain payable, (ii) the terminating party shall return any prepaid amounts attributable to the period after termination, and (iii) neither party shall be entitled to damages solely on account of such termination."

The specific number of days depends on the contract type. Service contracts and consulting agreements typically use 30 to 60 days. Construction contracts often use 90 to 180 days, given longer project timelines. Commercial leases sometimes allow landlords to terminate if force majeure prevents reconstruction for more than 180 days. Commercial leases also sometimes allow tenants to terminate if force majeure prevents their specific permitted use for more than 90 days — but only if the lease expressly says so.

The "no further liability for the termination itself" language is equally important and equally often omitted. Without it, a court might find that the terminating party owes damages for ending the contract, even when the contract was terminated because the force majeure event made continued performance impossible. That is a circular outcome — liability for exercising a contractual right — that no party intends. But contracts that do not address it explicitly leave the door open for exactly that argument.

Common Drafting Mistakes and the Exact Language That Fixes Them

Before you finalize any contract, run the force majeure clause through this checklist of the five most frequent mistakes and the exact wording that fixes each one. These are the failure points that show up repeatedly in force majeure litigation, and each is easy to address at the drafting stage.

Mistake 1: Trigger list is outdated or too narrow. A clause drafted in 2010 that lists only "fire, flood, earthquake, storm, and acts of war" does not cover pandemic, government shutdown, cyberattack, or supply chain collapse. Fix: expand the list and add explicit language: "...pandemic, epidemic, or public health emergency declared by any federal, state, or local governmental authority; government-mandated closure or shelter-in-place order affecting the relevant premises or operations; cyberattack or ransomware event attributable to a third party; and import restrictions or tariffs enacted after the Effective Date that make performance commercially impossible."

Mistake 2: No causal link requirement. A clause that says "if a force majeure event occurs, performance is excused" without requiring a causal connection between the event and the specific failure is dangerously overbroad. Fix: add "to the extent that such event directly and materially prevents the affected party from performing the specific obligation at issue under this Agreement."

Mistake 3: Vague or missing notice provisions. "Prompt" written notice is not a standard. Courts have found that notice given two weeks after the event was too late even when "prompt" was the only requirement. Fix: specify days — "within five (5) business days of the date the Force Majeure Event first affects the affected party's performance" — and specify what the notice must contain.

Mistake 4: No termination right after extended force majeure. Parties need an exit when a force majeure event drags on for months. Fix: include the mutual 60-day termination right described above, adapted to your contract type and timeline.

Mistake 5: Silence on monetary obligations. Courts generally do not excuse money payments under a force majeure clause unless the clause expressly extends to them. Fix: add "For the avoidance of doubt, if the Force Majeure Event prevents a party from receiving the revenue or consideration that would otherwise fund its payment obligations hereunder, such payment obligations shall be deferred — but not waived — until fifteen (15) days after the Force Majeure Event ceases."

Using a generator tool or an online contract builder can produce a baseline clause, but these five fixes almost always need to be added manually. No automated tool in 2025 catches all of them by default. You can use a subcontractor agreement template or any other standard contract form as a starting point, and then layer in these specific provisions.

Pre-Signing Checklist — Your Force Majeure Clause Before the Ink Dries

Here is your final self-check before any contract with a force majeure clause gets signed. Run through each item. If you cannot check it off, fix it before execution — not during a dispute.

• Does the trigger list include events specific to your industry and current risk landscape: pandemic, government shutdown, cyberattack, tariffs, supply chain collapse?
• Does the clause require written notice within a defined number of days (not "promptly") and specify what that notice must contain?
• Is there an affirmative mitigation obligation — requiring the invoking party to take commercially reasonable steps to work around the problem and keep the other party updated?
• Does the clause address monetary obligations explicitly, rather than leaving it to inference whether rent, fees, or installment payments are suspended?
• Is there a mutual termination right triggered by extended force majeure, with clear no-further-liability language for the termination itself?

Ask one final question before signing: does this clause apply symmetrically to both parties, or does one side get broader force majeure protection? An asymmetric clause is not illegal — courts enforce them when they are clearly written and negotiated at arms' length between legal entities. But you should know you are signing one before the event occurs, not after. The time to be surprised about what your force majeure clause does not cover is at the negotiating table, not in the courtroom.

Here is a complete, ready-to-use sample clause that incorporates all the elements discussed in this article. Adjust the bracketed items for your contract type and jurisdiction, and have counsel review the final language before execution:

"Force Majeure Event means any event or circumstance beyond the reasonable control of the affected party, occurring after the Effective Date and unforeseeable at such date, including but not limited to: acts of God; fire; flood; earthquake; hurricane or severe weather event; pandemic, epidemic, or public health emergency declared by any governmental authority; government-mandated closure, quarantine, shelter-in-place order, or travel restriction; acts of war; terrorism; riot or civil commotion; strike or labor action not involving the affected party's own employees; failure of third-party utilities, telecommunications, or internet infrastructure; or new tariffs or import restrictions enacted after the Effective Date; provided that (i) such event directly and materially causes the affected party's inability to perform the specific obligation at issue, (ii) the affected party provides written notice to the other party within five (5) business days of occurrence specifying the nature, scope, and expected duration of the event, and (iii) the affected party uses and continues to use commercially reasonable efforts to overcome or mitigate the effects of such event. If the Force Majeure Event continues for more than [60] consecutive days, either party may terminate this Agreement on [15] days' written notice without further liability except for amounts accrued prior to the Force Majeure Event."

That is your working clause. It is not magic — a well-resourced counterparty with a creative litigator can still find arguments around it — but it addresses every failure point this article has identified, and it is grounded in the language courts have enforced. Adapt it, make it yours, and stop relying on "acts of God" to cover a world that has moved well past Acts of God territory.

Article reviewed by: Jordan S. (Attorney)