A balanced, mutual starting point that reflects the market postures above.
Neither party shall be liable for any delay or failure to perform its obligations under this Agreement, other than obligations to make payment, to the extent the delay or failure results from an event beyond that party's reasonable control, including acts of God, fire, flood, earthquake, epidemic, pandemic or public health emergency, war, terrorism, riot, labor dispute, or government action, provided the event could not have been avoided by reasonable precautions. The affected party shall give the other party prompt written notice, use reasonable efforts to mitigate the effects, and resume performance as soon as practicable. If the event continues for more than ninety (90) consecutive days, either party may terminate this Agreement on written notice, without liability except for obligations accrued before termination. Economic hardship or increased cost of performance shall not, by itself, constitute a force majeure event.
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These figures come from published studies of force majeure clauses. They point in a direction rather than settle the question, because the samples are small, mostly from the COVID period, and mostly US. Each number below shows its source and sample size.
Reader assumes "act of God" covers a pandemic. It often does not. Most clauses in the data never named a pandemic (18% did). If the clause predates 2020 and nobody amended it, treat the gap as real.
Reader treats a cost increase as force majeure. Performance getting expensive is not performance becoming impossible. Courts do not excuse a party on economic hardship alone unless the clause spells it out.
Reader forgets how the clause interacts with the liability cap. A force majeure termination usually creates wind-down costs. If the cap covers direct damages but the force majeure clause says nothing about transition expense, no one has allocated that cost.
It is a contract provision that frees a party from performing when a specific, unforeseeable event beyond its reasonable control makes performance impossible. It suspends or ends that party's obligations, but only for the events the clause actually names.
It is French for "superior force." In a contract it means an extraordinary event outside either party's control, such as a natural disaster, war, or government action, that stops one side from performing. Rising costs or inconvenience do not count.
Only what the clause lists, and US courts read the list narrowly. Common entries: acts of God, natural disasters, war, terrorism, government action, and now epidemics. If the clause omits an event and has no catch-all, a court usually will not add it.
Only if the clause says so, or its catch-all is broad enough for a court to read it in. In one public study, 18% of clauses named a pandemic (eBrevia, n=171), so most do not. Clauses that name "epidemic" or "public health emergency" hold up far better.
A party declares force majeure when it formally tells the other side that a qualifying event has stopped its performance, and invokes the clause to suspend or excuse its obligations. Most clauses require prompt written notice, so timing and method matter.
Not under a well-drafted clause. Model clauses from BIMCO and ICC carve payment obligations out of force majeure relief. If yours does not, that is usually the first redline.
Name the qualifying events, add a catch-all ("including, without limitation"), require prompt notice and mitigation, carve out payment, and give either party a right to terminate after a prolonged event. See the sample clause above.
No. "Act of God" is one category inside a force majeure list, and it appeared in about 75% of the clauses studied. Impossibility is a separate common-law doctrine that courts apply narrowly. Force majeure is contractual, so you get what you drafted.
Roughly "force ma-ZHOR." It comes from French and means "superior force."
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