When COVID-19 shut down the country in March 2020, businesses across every industry reached for the same clause: force majeure. Event venues, airlines, construction companies, commercial tenants — all invoked it to excuse non-performance. Most of them lost. Courts across the country found that their contracts either did not list pandemics as a qualifying event, or that performance was not truly impossible, just more expensive and inconvenient. The lesson was not that force majeure is useless. It was that the clause only works if it was drafted carefully before the crisis arrived.
What force majeure actually means
Force majeure is French for "superior force." As a contract clause, it excuses one or both parties from performing their obligations when an extraordinary event outside their control makes performance impossible or significantly impeded. It is not a general escape hatch for when things get difficult. Courts interpret force majeure clauses narrowly, and the bar for invoking one successfully is higher than most people assume.
The clause allocates risk. Without one, the default rule under contract law is that a party who fails to perform is in breach, full stop, regardless of why. Force majeure shifts some of that risk to both sides by acknowledging upfront that certain catastrophic events can excuse non-performance without triggering liability. The catch is that the clause only covers what it says it covers, and what it says it covers is everything.
The listed events problem: why vague clauses fail
Most force majeure clauses work by listing the events that qualify. Natural disasters, war, government orders, labor strikes, terrorism. The list defines the clause's scope. If an event is not on the list, it does not trigger the clause, regardless of how catastrophic it is.
Courts have been consistent about this. A clause that lists "floods, earthquakes, and hurricanes" does not cover a fire. A clause that lists "acts of God" is interpreted to cover natural events but not regulatory or governmental actions. A clause that lists "epidemic" may cover COVID, but one that lists only "pandemic" might not cover a localized disease outbreak. The specificity of the list determines the scope of protection, and courts will not stretch language beyond what it clearly says.
Many older contracts used catchall phrases like "any event beyond the parties' reasonable control" or "other causes beyond a party's control." These sound broad. Courts often read them narrowly, applying the principle of ejusdem generis (Latin for "of the same kind"), which means a general catchall phrase at the end of a specific list is interpreted to cover only events similar in type to those specifically listed. A catchall after a list of natural disasters may not cover a government shutdown.
The three things a court looks for when force majeure is invoked
Even when an event is listed, invoking force majeure successfully requires satisfying three separate conditions. Most failed COVID claims broke down on at least one of them.
First, the event must have actually occurred and must be the direct cause of the non-performance. This sounds obvious but matters in practice. A restaurant that closed during COVID because of government shutdown orders has a different argument than one that closed voluntarily because business slowed. The government order is the direct cause of closure in the first case. Reduced revenue is not force majeure.
Second, the event must make performance impossible or impracticable, not merely more expensive or inconvenient. This is where the majority of COVID force majeure claims failed. Courts found that performance was harder, more costly, or less profitable, but not truly impossible. A commercial tenant who could not operate their retail business during a lockdown found that courts often distinguished between the obligation to pay rent (which remained possible) and the ability to generate revenue from the premises (which was affected by COVID). Paying rent was still possible. That it was harder to come up with the money was a different problem.
Third, most clauses require the invoking party to give timely written notice to the other side, typically within a specified number of days of the event. Miss the notice deadline and the right to invoke force majeure may be waived, regardless of whether the other two conditions are met. This is a procedural trap that catches parties who assume the other side already knows about the disruption.
COVID as a case study in what courts actually decided
The COVID litigation produced a relatively clear picture of how courts treat force majeure in practice. The results were largely unfavorable for parties invoking the clause, but for instructive reasons.
Commercial lease disputes were the most common. Tenants argued that government-ordered closures triggered force majeure and excused rent obligations. Courts in New York, California, Illinois, and elsewhere generally rejected these claims on two grounds: leases rarely listed pandemics or government orders as qualifying events, and even when they did, paying rent was not impossible, only the business operations that generated rental income were disrupted. The obligation to pay and the ability to operate were treated as separate matters.
Event and hospitality contracts produced more mixed results. When a wedding venue was legally prohibited from hosting events by a government order, some courts found that government action was a listed event and that performance was genuinely impossible. Cases where the event could have been rescheduled rather than cancelled were treated differently from cases where the prohibition made performance impossible during the contract window.
Supply chain contracts produced some of the strongest force majeure arguments, particularly where factory closures in specific regions were the direct cause of non-delivery. Courts were more receptive to these claims when the specific chain of causation from the listed event to the non-performance was clear and direct.
Frustration of purpose and impracticability: the fallback doctrines that rarely save you
When a contract has no force majeure clause, or when the clause does not cover the event at issue, two common law doctrines sometimes apply: frustration of purpose and impracticability (also called impossibility in some states).
Frustration of purpose excuses performance when an unforeseen event destroys the entire reason one party entered the contract, even though performance is technically still possible. The classic case involves a contract to rent a room to watch a coronation parade, where the coronation was cancelled. The room could still be rented. But the entire purpose of the contract was frustrated. Courts apply this doctrine narrowly and require that the frustrating event be unforeseeable, severe, and not the fault of the party invoking it.
Impracticability excuses performance when an unforeseen event makes performance commercially impracticable, not merely more expensive. The threshold is high. Courts have consistently held that increased costs, reduced profitability, and supply chain disruptions that make a contract less attractive do not rise to impracticability. The doctrine is designed for situations where the fundamental assumptions underlying the contract have been destroyed, not where performance has become a bad deal.
Both doctrines are litigation strategies of last resort. They are uncertain, fact-intensive, and expensive to litigate. A well-drafted force majeure clause does more work more reliably than either of them.
What a well-drafted clause looks like
A strong force majeure clause does several things the weak ones skip. It lists events specifically and includes a broad but defined catchall. It distinguishes between events that suspend performance and events that, if prolonged, allow either party to terminate. It sets a clear notice requirement with a specific deadline and a prescribed method of delivery. It includes a mitigation obligation, requiring the invoking party to take reasonable steps to work around the disruption rather than simply stopping performance. And it specifies what happens to payments and obligations during the suspension period.
The pandemic taught drafters to include epidemics, pandemics, and public health emergencies as named events. It also taught the importance of specifying whether government orders restricting use of a premises, even if they do not make payment impossible, qualify as force majeure events for the affected party's performance obligations. Many commercial leases now include specific pandemic provisions that address these questions directly rather than leaving them to litigation.
One thing a force majeure clause should not do is excuse performance for events that were foreseeable at the time of contracting. If a construction contract is signed during hurricane season in Florida, the contractor cannot invoke force majeure for a hurricane that hits during construction. Courts look at whether the event was foreseeable when the contract was made, and foreseeable events are expected to be planned for, not excused after the fact.
A Real Scenario
A corporate event planner in Chicago contracts with a hotel for a 300-person conference in April 2020. The contract includes a force majeure clause listing "natural disasters, acts of terrorism, and labor strikes" but does not mention pandemics, epidemics, or government orders. Illinois issues a stay-at-home order prohibiting gatherings. The event planner invokes force majeure. The hotel argues the clause does not cover government orders or pandemics and demands the cancellation fee of $45,000. The event planner's attorney reviews the clause, confirms the coverage gap, and negotiates a rescheduling agreement rather than litigating a force majeure claim the clause does not clearly support. The lesson: what is not on the list is not covered, regardless of how catastrophic the event.
Frequently Asked Questions
Does force majeure automatically apply when something goes wrong?
No. Force majeure must be invoked, and invoking it requires following the contract's specific procedures, typically a written notice to the other party within a set number of days. The party invoking force majeure also bears the burden of showing that the event qualifies under the clause, that it actually caused the non-performance, and that the party took reasonable steps to mitigate the impact. Assuming force majeure applies without reviewing the clause and following the notice requirements is how parties accidentally waive the protection the clause provides.
Can I use force majeure to get out of a contract I just want to exit?
Not legitimately. Force majeure is designed for genuine extraordinary events that prevent performance, not as a general exit mechanism. Invoking force majeure without a qualifying event is a breach of contract and potentially fraud. Courts look carefully at whether the invoking party actually faced an event that prevented performance or merely found the contract disadvantageous. A party who uses a claimed force majeure event as cover for an exit they wanted for other reasons faces significant legal exposure if the other side challenges the invocation.
What is the difference between force majeure and the frustration of purpose doctrine?
Force majeure is a contractual provision that the parties negotiate and include in their agreement. Frustration of purpose is a common law doctrine that courts apply when no force majeure clause covers the situation. Force majeure is generally more reliable because it defines upfront what events qualify and what the consequences are. Frustration of purpose is an uncertain litigation argument that requires showing an unforeseen event destroyed the entire purpose of the contract, not just made it less valuable. Courts apply frustration of purpose narrowly and reluctantly.
Does force majeure excuse payment obligations?
Usually not, unless the clause specifically says so. Courts have generally treated the obligation to pay money as separate from the obligation to perform services or deliver goods. A commercial tenant whose business was shut by a government order could not pay rent from closed operations, but courts in most jurisdictions found that paying money was not itself made impossible by COVID, even when earning money from the premises was. If a contract needs to excuse payment obligations in specific circumstances, the clause needs to say so explicitly rather than relying on general force majeure language.
How long can force majeure suspend a contract before either party can terminate?
It depends entirely on what the clause says. Well-drafted force majeure provisions specify a maximum suspension period, after which either party can elect to terminate the contract without further liability. Common periods range from 30 to 90 days, though the right duration depends on the nature of the contract and the type of events covered. Clauses that allow indefinite suspension without a termination right can leave both parties in limbo, unable to plan or seek alternatives, which is why professional drafters almost always include a termination trigger tied to the duration of the force majeure event.