What Is Force Majeure? Definition and Examples

The concept of force majeure refers to an extraordinary event rendering the legal obligations between two or more contractually bound parties impossible to fulfill. This type of event must be entirely beyond the parties' reasonable control. The contracting parties must also prove their reasonable efforts to mitigate the circumstances that have rendered the fulfillment of their duties impracticable.

As a precautionary measure against breach of contract, many commercial agreements contain force majeure contract clauses enumerating a list of major events that could result in non-performance of contractual duties. Notable events include war, riots, criminal activity, epidemics, pandemics, and other unforeseeable events. Such events may result in the parties delaying their obligations for a period of time, revising the contract terms, or agreeing on the contract’s cancellation.

A force majeure provision will vary depending on the type of contract it applies to, which means the events or situations that qualify in a court of civil law may vary. In a case where a contract does not have a force majeure clause, a party may be able to claim frustration of purpose under common law, also known as the Doctrine of Frustration. This claim would void an entire contract and all obligations by both parties if found applicable.

Force majeure can apply to various unforeseen events preventing a contractually bound party from performing its obligations. For force majeure to apply, these hindering circumstances must be beyond a party's reasonable control. Common examples of force majeure events include acts of war, terrorist attacks, epidemics, pandemics like COVID-19, death, labor strikes, riots, crime or property theft, acts of God, natural disasters (like blizzards, earthquakes, or hurricanes), or acts of terrorism.

While there are many examples of force majeure events, the applicability of these examples depends on contractual provisions. Some force majeure clauses list exceptional events that could interfere with the parties’ ability to fulfill their obligations under the original contract. Others will simply use the term as a catch-all to refer to events outside a party’s control.

A force majeure clause covers many unforeseeable events, but it won’t typically cover any occurrences that a party has reasonable control over or caused. Here are some circumstances that force majeure may not cover:

• Predictable events: Any events which the affected contractual parties could have reasonably predicted (either due to a common occurrence or a likelihood for which the parties could have planned) will likely not qualify as force majeure events. For example, if it rains on the day of a concert—a common occurrence—this does not excuse the acts or event producers from holding the event.
• Self-induced frustration: An event that a party causes through their own actions does not qualify as a force majeure. For example, if a person accidentally caused a fire, damaging property needed to fulfill a contract, force majeure will likely not apply.
• Express statements of circumstance: A contract may expressly state that a particular event will not void the agreement, in which case force majeure does not apply.
• Negligence or malfeasance: Force majeure will typically not excuse parties from their obligations if the hindering circumstance results from their negligence or wrongdoing. For example, if a contractually important piece of property burns down, and one of the affected parties does not take the reasonable steps to prevent the fire, they will likely not be able to claim force majeure.

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