Force majeure clauses are everywhere. They’re the “acts of God” boilerplate that says a party isn’t liable if certain extraordinary events make performance impossible. But modern contract law already excuses performance in some extreme situations. If drafted carelessly, a force majeure clause can narrow those protections rather than expand them.
We recommend treating force majeure as a risk allocation tool, not just standard boilerplate.
1. Start by asking: do you even need a force majeure clause?
Without any force majeure clause, in most jurisdictions performance can be excused when it becomes impracticable. That is, a party’s duty can be discharged when:
- An event occurs after the contract is made
- The event’s nonoccurrence was a basic assumption of the deal
- The event is not the fault of the party seeking to be excused
- The contract did not allocate that increased risk to that party
- The event makes performance excessively burdensome – it can only be done with extreme and unreasonable difficulty, expense, or loss (mere increased cost is usually not enough)
Historically, force majeure clauses mattered more because the common law required performance regardless of circumstances, with only narrow exceptions. Under the modern doctrine of impracticability, many of the “classic” force majeure events are already covered even if the contract is silent.
We recommend:
- Do not automatically insert a force majeure clause.
- First, assess whether the default impracticability doctrine already covers the risks you care about.
If you have no specific concern about disruption, a generic force majeure clause may be unnecessary and may even reduce existing rights.
2. Understand what a typical force majeure clause does
A standard clause usually:
- States that certain events excuse performance
- Lists those events
- Imposes obligations on the party claiming excuse (notice, updates, efforts to minimize damage, and resume performance)
Illustration:
A. No party will be liable for nonperformance of any of its obligations under the agreement if its nonperformance was due to a Force Majeure Event …
B. A Force Majeure Event shall mean any act of God; war; riot; civil strife; act of terrorism, domestic or foreign; embargo; governmental rule, regulation or decree; flood, fire, hurricane, tornado, or other casualty; earthquake; strike, lockout, or other labor disturbance; the unavailability of labor or materials to the extent beyond the control of the party affected; or any other events or circumstances not within the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing.
C. Upon occurrence of a Force Majeure Event, the non-performing party shall promptly notify the other party … and use reasonable diligence to minimize damages and to resume performance.
We recommend:
- Use this kind of clause only when you have identified concrete disruption risks that you want to address directly.
- Otherwise, you may be layering a rigid list on top of a more flexible default rule.
3. Avoid the “incomplete list” trap
No drafter can foresee every disruptive event. Any attempt to list all force majeure events will be incomplete.
This article warns that the interpretive canon expressio unius est exclusio alterius (the expression of one thing excludes others) can bite you:
“An attempt to list every contingency that should be considered a force majeure event is, itself, an impossibility since no drafter is omniscient. The canon … would exclude any item not specifically listed. Therefore, an incomplete listing may unwittingly surrender some of the protections … available … without a force majeure clause.”
Illustration
- Contract A: no force majeure clause.
- Contract B: force majeure clause that excuses performance only for “fire, flood, earthquake, war, riot, or strike.”
A government order shuts down operations.
- Under Contract A, the affected party can argue impracticability.
- Under Contract B, the counterparty can argue:
- “You chose your list.”
- “Government shutdown isn’t on it.”
- “You agreed to bear that risk.”
We recommend:
- Do not rely on a short, closed list of events.
- If you list examples, make clear they are illustrative, not exhaustive.
- Recognize that a narrow list can contract away protections you would otherwise have.
4. Draft catch‑alls to defeat “ejusdem generis”
Drafters often add a catch‑all like:
“…or any other events or circumstances beyond the reasonable control of the party affected.”
But the canon ejusdem generis can limit this to events of the same kind as those listed.
The article notes:
“If it merely says ‘… or any other events or circumstances beyond the reasonable control of the party affected,’ the canon … ejusdem generis likely would limit the meaning of the catch-all to the same type of events as those listed specifically.”
We recommend:
- Draft the catch‑all to explicitly include dissimilar events, for example: “…or any other events or circumstances not within the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing.”
- Use this kind of language whenever you include a list followed by a general phrase, so courts do not narrow the clause to “more of the same.”
5. Draft with the client’s actual risk profile in mind
The article emphasizes that parties are free to allocate risks as they see fit:
“There is no reason the parties need to limit a force majeure clause to classic force majeure contingencies grounded in unforeseeability beyond the parties’ reasonable control. The parties are free to allocate the risks as they see fit, and it is possible that the client may not be willing to assume the risk of performing in the face of certain clearly foreseeable events.”
We recommend:
- Identify specific risks your client does not want to bear, including foreseeable ones (e.g., market price above a threshold, loss of a key supplier, planned outages).
- Expressly condition duties on the nonoccurrence of those events.
- Draft a risk management clause that:
- Excuses the specifically listed risks, and
- Also excuses “any and all events, regardless of their dissimilarity to the foregoing, deemed to be impracticable under the law.”
This approach combines:
- The flexibility of the default impracticability doctrine, and
- The precision of tailored risk allocation.
6. Build in operational duties and termination rights
Force majeure shouldn’t just be about excuses; it should also drive behavior.
The article suggests that clients may:
- Require vendors to take preventative measures and reasonable actions against foreseeable events (e.g., power failures)
- Include a termination right if a force majeure event continues for too long
Suggested language:
“Vendor shall have in place disaster recovery plans to deal with a loss of electric power or telecommunication services. In the event of a power failure, Vendor shall have adequate backup power sources to immediately continue its operations for at least [24] more hours (the ‘Back Up Power Period’). The failure of electric power or Vendor’s backup power source shall not be considered a Force Majeure Event until after the Back Up Power Period. In the event a Force Majeure Event continues for more than [seven (7)] days in any [thirty (30) day] period, then the [Client] may terminate this Agreement upon written notice to [Vendor].”
We recommend:
- Use force majeure clauses to impose concrete obligations (e.g., disaster recovery, backup power, redundancy).
- Define when an event starts to count as force majeure (e.g., only after backup measures are exhausted).
- Give the non‑affected party a clear termination right if the suspension lasts beyond an agreed period.
7. Recognize the limits of impracticability and use risk allocation to fill gaps
The default doctrine does not excuse every hardship. The document cites a case where:
- A seller claimed it was excused because demand exceeded its production capacity.
- One reactor was down for several weeks due to routine annual maintenance.
- The court held that routine maintenance is not the kind of “impossibility” the parties could not have anticipated, so the defense was unavailable.
We recommend:
- Do not assume that impracticability will cover foreseeable, recurring events such as routine maintenance or predictable capacity constraints.
- Where such events matter, draft explicit risk allocation clauses (e.g., excusing supply obligations to the extent production falls below a defined level due to scheduled maintenance).
The article concludes that prudent drafters should:
“…insert a clause establishing that the impracticability defense of the UCC is available to the parties, but in addition, they will enumerate specific contingencies that might realistically interfere with their clients’ ability to perform … regardless of whether those contingencies fit the accepted definition of impracticability.”
We recommend:
- Preserve the availability of the default excuse doctrine.
- Layer on deal‑specific contingencies that reflect how the particular business actually operates.
8. Our overall recommendations
Putting it all together, we recommend that you:
- Do not treat force majeure as automatic boilerplate.
- First, understand what the default law already provides.
- If you add a clause, avoid narrow, incomplete lists that may contract away protections.
- Draft catch‑alls that expressly include similar and dissimilar events.
- Focus on the client’s real, concrete risks, including foreseeable ones.
- Use force majeure and related clauses to:
- Allocate specific risks,
- Impose operational safeguards, and
- Provide clear termination mechanics.
Done well, force majeure drafting becomes a targeted risk-allocation exercise that expands and clarifies protection rather than inadvertently shrinking it.