Force majeure clauses allocate risk when performance becomes impossible or impracticable for reasons beyond a party’s control. These provisions appear in nearly every long-term commercial agreement, yet their drafting varies enormously, and the differences matter when an unexpected event disrupts performance. This article examines the standard structure of force majeure provisions, the choices drafters face, and the interpretive questions that arise when the clause is invoked. Our aim is to help readers understand not only what force majeure clauses typically say but also why they say it that way.
We begin with the list of qualifying events. Most force majeure clauses enumerate events such as natural disasters, war, civil unrest, government action, and epidemics, and then add a catch-all phrase covering events beyond reasonable control. The drafting choice between an exhaustive list and an illustrative list is consequential: an exhaustive list limits relief to the enumerated events, while an illustrative list, often introduced by “including,” leaves room for unlisted events. We compare these approaches and explain why the catch-all formulation is frequently contested. We also discuss how the clause defines the standard of impracticability, since a clause that requires impossibility sets a higher bar than one that accepts significant impediment.
Next, the article examines notice and mitigation requirements. A party seeking relief under a force majeure clause is usually required to notify the other party within a specified period and to take reasonable steps to mitigate the effects of the event. We analyze how notice periods are drafted, what happens when notice is late or incomplete, and how mitigation duties are described. These procedural requirements are often treated as conditions, and a failure to satisfy them can defeat an otherwise valid claim. We also discuss the interaction between notice under the force majeure clause and notice under related provisions, such as termination or suspension clauses.
The article then turns to the consequences of a successful invocation. Some clauses suspend performance for the duration of the event, others extend deadlines, and still others permit termination if the event continues beyond a defined period. We compare these remedies and explain how they interact with the agreement’s termination provisions. We also address the treatment of accrued obligations during the suspension period and the question of whether a party remains liable for obligations that matured before the event. Readers will learn to check whether the clause provides a complete remedy or leaves gaps that must be filled by general legal principles.
Because force majeure disputes often turn on the precise wording of the clause, research into how similar formulations have been treated is essential. Readers who work with westlaw will find guidance on locating commentary about specific force majeure formulations, and those who use westlaw classic will see how the interface supports clause-level searching. We explain how a westlaw log in session supports continuity when research spans multiple sittings, and how a westlaw log helps a researcher avoid revisiting the same materials. For academic readers, we describe how westlaw university login access is typically used to support structured study of contractual risk allocation.
We also address the relationship between force majeure and other risk-allocation devices. A force majeure clause does not operate in isolation; it interacts with change-in-law provisions, hardship clauses, and termination rights. We explain how drafters coordinate these provisions and what happens when they conflict. Readers will learn to identify the order of precedence among overlapping clauses and to assess whether the force majeure provision is consistent with the rest of the agreement. This comparative reading is essential, because a clause that looks adequate in isolation can create ambiguity when read alongside its neighbors.
Finally, the article offers a drafting and review checklist. We recommend testing the clause against several scenarios: a short disruption, a prolonged event, an event that affects only part of performance, and an event that occurs during a notice period. We also suggest checking how the clause defines the affected party’s obligations during suspension and whether the clause provides a clear path to termination. Readers who combine this scenario testing with targeted research using westlaw edge or westlaw precision will be better equipped to evaluate whether a force majeure provision is robust, balanced, and consistent with the agreement as a whole.