Force majeure clause: what it excuses, and what it doesn't

This is the point that catches people out. Under English law there is no general doctrine of force majeure. If a contract does not contain a force majeure clause, an unexpected catastrophe generally does not excuse performance: the party either performs or is in breach. The only fallback is the narrow doctrine of frustration, which discharges a contract entirely in limited circumstances and is much harder to invoke.

So force majeure means exactly what the clause says: no more, no less. A clause listing specific events will not help you with an event it does not list. This is why the drafting, and especially the list of triggering events, is everything.

A force majeure clause allocates the risk of defined disruptive events by relieving the affected party from liability for non-performance caused by them. In practice it does four things.

• Defines the triggering events, often as a list (war, natural disaster, epidemic, government action), sometimes closed with a catch-all such as any event beyond the reasonable control of the affected party.
• Sets the effect, usually suspension of the affected obligations while the event continues, not automatic termination.
• Imposes conditions: notice to the other party, and a duty to mitigate.
• Provides an exit: a right to terminate if the event drags on beyond a defined period.

Relying on force majeure is not automatic even when a listed event occurs. A party typically has to show each of the following.

• A triggering event: the event falls within the clause's defined list or catch-all.
• Causation: the event actually prevented (or hindered, depending on the wording) performance.
• Beyond control: the event was outside the party's reasonable control.
• Not avoidable: the party could not have prevented or mitigated the effect.
• Notice: the party notified the other as the clause requires.

The causation and mitigation limbs are where claims fail. A party that could have performed by another route, or that did not take reasonable steps to work around the disruption, usually cannot rely on the clause. It became more expensive or difficult is rarely enough; the wording often requires performance to be prevented, not merely hindered.

The single most litigated word in a force majeure clause is the verb. Prevented sets a high bar: performance must be impossible, not just harder. Hindered or delayed is far easier to satisfy. Parties argue for years over whether a disruption prevented performance or merely made it uneconomic, and the answer is usually already decided by which verb the drafter chose.

Illustrative only:

"Neither party shall be liable for any failure or delay in performing its obligations (other than an obligation to pay) to the extent that such failure or delay is caused by an event beyond its reasonable control, including [war, act of terrorism, epidemic, flood, fire, or government action], provided that the affected party promptly notifies the other, takes reasonable steps to mitigate the effect, and resumes performance as soon as reasonably practicable. If the event continues for more than [60] days, either party may terminate on written notice."

Note the carve-out for payment obligations: a common feature, since a party rarely gets excused from paying money by force majeure.

Five points decide how the clause behaves when it is needed.

• The list of events. Is the event you are worried about actually named, or caught by the catch-all? Since 2020 many clauses name epidemics and pandemics explicitly; older ones may not.
• The verb. Prevented versus hindered or delayed decides how hard the clause is to invoke.
• Payment carve-out. Is the obligation to pay excluded from relief? Usually yes.
• Notice and mitigation. These are conditions, not formalities: miss them and the clause may not apply.
• Termination trigger. How long must the event last before either party can exit?

What is a force majeure clause? A contractual provision that relieves a party from liability for failing to perform when a defined disruptive event beyond its control (such as war, natural disaster or government action) prevents performance, usually suspending the affected obligations rather than ending the contract.

Does force majeure exist without a clause under English law? No. English law has no general doctrine of force majeure. Without an express clause, an unexpected catastrophe generally does not excuse performance; the only narrow fallback is the doctrine of frustration.

Does force majeure cover pandemics? Only if the clause's event list or catch-all covers it. Many clauses drafted after 2020 name epidemics or pandemics expressly; older clauses may not, and whether a general catch-all captures one has been heavily litigated.

Can you use force majeure to avoid paying? Rarely. Payment obligations are commonly carved out of force majeure relief, and being short of money is not usually a qualifying event.

What must a party prove to rely on force majeure? That a triggering event within the clause occurred, that it caused (often prevented) non-performance, that it was beyond reasonable control and not avoidable by mitigation, and that any notice requirement was met.

When a disruption hits, the question is rarely about one contract. It is which of the firm's client's forty supply agreements name the event, which use prevented rather than hindered, and which carry a termination trigger at sixty days rather than one hundred and eighty. LegalAI Space's Document Review grid takes those agreements as rows and each of those questions as a column, and returns an answer per document with the passage it came from and a link that opens the agreement at that clause. The outliers announce themselves when you read down the column.

The grid extracts the mechanics; whether a particular real-world event clears the causation bar under a particular clause is a fact-sensitive legal judgement it does not make. The Document Review page describes how the grid works and what a cell contains, and the workflow Review a supply agreement for quality and liability terms shows the risk-allocation clauses of a supply contract being read together. Both are linked below.