Force majeure: what counts, what doesn't

In one line. A force majeure clause pauses a side's obligations while an event outside its control stops it performing, and usually lets either side end the contract if the event goes on too long.

The phrase is French for "superior force". In contracts written in English it is used as a label for a clause the parties write themselves. So the useful question is rarely "is this force majeure?" in the abstract. It is "does our clause cover this?"

It also helps to separate force majeure from the clauses near it. Termination for convenience lets a side leave for any reason, usually with notice and a fee. Termination for breach applies when one side fails to do what it promised. Force majeure is neither: nobody has done anything wrong, and nobody chose to leave. Something outside both sides' control has made performance impossible or seriously delayed, and the clause says what happens next. Keeping that distinction in mind makes the list of events easier to read.

The idea comes from civil-law systems, which have a general concept of events that excuse performance. Contracts drafted for English-speaking markets borrowed the label and turned it into a list.

That history explains the shape most clauses take today: a definition, a list of events, a catch-all line, and a process. Because the clause is written by the parties, two contracts with the same heading can cover quite different things. Whether a particular event is covered in a particular contract is a question about its wording and the law that governs it, which this page does not answer.

Typical lists include:

• Natural events: flood, fire, earthquake, severe weather.
• War, terrorism, civil unrest.
• Epidemic or pandemic, and government orders that follow.
• Failure of public utilities or networks.
• Strikes, often limited to strikes not involving the affected side's own staff.

Most lists end with a catch-all such as "any other event beyond the reasonable control of the affected party". The catch-all is commonly read alongside the named events, so a short, specific list followed by a broad line is not the same as a long list.

For studios and freelancers, the items worth checking are the ones that touch delivery: hosting or platform outages, loss of a key supplier, and illness of a named individual. These are often left off, or excluded.

Most clauses make relief conditional on telling the other side. A typical process:

1. Notify the other side promptly, often within a set number of days, saying what happened and what it affects.
2. Take reasonable steps to reduce the impact.
3. Give updates while the event continues.
4. Resume as soon as it ends.

Missing the notice step is a common way to lose the protection the clause offers. If the contract says "in writing", an email may or may not count depending on the notice wording elsewhere in the document.

Clauses commonly exclude more than people expect:

• Paying money. Most clauses say an event does not excuse an obligation to pay sums already due. A client cannot usually point to a flood to delay an invoice for work already delivered. See payment terms.
• Things that just got harder or more expensive. A rise in costs or a change in the market is usually not on the list.
• Events the side could have avoided. Many clauses exclude events that reasonable planning would have prevented, such as no backup for a single point of failure.
• The affected side's own staff or subcontractors, unless the clause says otherwise.

Most clauses add a long-stop: if the event lasts longer than a set period, often 30, 60 or 90 days, either side can end the contract by notice. The termination clause then decides what is paid for work already done.

For a statement of work with fixed dates, it helps to say how dates move during a pause. Without that, both sides can agree the event happened and still disagree about the new deadline.