Force majeure clauses sit quietly in contracts until the exact moment they matter most — and by then, a poorly drafted one can leave a company liable for delays or non-performance genuinely outside their control. It deserves more attention at signing than it usually gets.
What Force Majeure Actually Covers
A force majeure clause excuses a party from contractual performance when an extraordinary event beyond their reasonable control — natural disasters, war, government action, or similarly severe disruptions — makes performance impossible or impracticable. Crucially, it only applies to events specifically covered by the clause’s language and the applicable governing law, not to any inconvenient circumstance.
Why Generic Clauses Are a Problem
Many contracts use a generic, boilerplate force majeure clause copied from a template, without tailoring it to the actual risks relevant to the specific transaction and markets involved — a clause that doesn’t explicitly address, for example, sanctions-driven payment or shipping disruptions relevant to CIS trade may not actually protect a party when that specific scenario occurs.
What a Well-Drafted Clause Should Address
A properly drafted clause should specify which events qualify, the notice procedure required to invoke it, whether partial performance is still expected, and what happens to the contract if the force majeure event continues beyond a defined period — termination rights, not just suspension of obligations.
Force Majeure vs Commercial Hardship
A common misunderstanding is treating rising costs, currency devaluation, or a simply less profitable deal as force majeure — it generally isn’t. Force majeure requires performance to be impossible or impracticable, not merely less commercially attractive than expected.
Governing Law Matters
How force majeure is interpreted varies by the contract’s governing legal jurisdiction — some legal systems have a statutory force majeure or “frustration” doctrine even without an explicit clause, while others rely entirely on the contract’s specific language, making the choice of governing law directly relevant to how much protection a force majeure clause actually provides.
Getting the Clause Right Before Signing
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This article is general information, not legal advice. Always consult a qualified contract lawyer for your specific agreement.
Frequently Asked Questions
Does force majeure cover rising costs or a less profitable deal?
Generally no. Force majeure requires that performance be impossible or impracticable due to an extraordinary event, not merely less commercially attractive than originally expected — rising costs or currency devaluation typically don’t qualify.
Why is a generic, boilerplate force majeure clause risky?
A generic clause copied from a template may not explicitly address the specific risks relevant to your markets — for example, sanctions-driven disruptions — meaning it may not actually provide protection when that specific scenario occurs.
Does the governing law of a contract affect how force majeure is interpreted?
Yes. Some legal systems have a statutory force majeure or frustration doctrine even without an explicit clause, while others rely entirely on the contract’s specific language, making the choice of governing law directly relevant to the protection provided.