Force majeure

A clause excusing performance when something outside anyone's control prevents it. It only covers what it lists.

What it means

A force majeure clause suspends or excuses a party's obligations when a defined event beyond their reasonable control prevents performance.

English law has no general doctrine of force majeure. If the clause is not in the contract, it does not apply — and if the event is not in the clause, it usually does not count.

Why it matters

The pandemic taught a large number of businesses that their contracts did not say what they assumed. Clauses drafted before 2020 rarely mentioned epidemics, and many did not cover government action either.

The alternative doctrine, frustration, is narrow and rarely succeeds: a contract becoming much harder or much less profitable is not frustration.

What it looks like in practice

Look for: a list of events with a sweep-up, whether the event must prevent performance or merely hinder it, notice requirements and deadlines, an obligation to mitigate, whether the relief is suspension or termination, and what happens to money already paid.

Notice provisions are frequently missed and are frequently fatal to the claim.

What to watch out for

Clauses that exclude the inability to pay. Almost all do — financial difficulty is not force majeure.

Supply chain failures, which are only covered if the clause says so explicitly.

Where to get proper advice

A commercial solicitor when drafting or when relying on one. Timing matters, so take the advice before serving notice, not after.