Contract Performance
Force Majeure
Also: Act of God, Vis Major, Unforeseeable Circumstances, Excusable Delay · Act of God, Vis Major, Unforeseeable Circumstances, Excusable Delay, Superior Force
A force majeure clause allocates the risk of extraordinary events outside the parties' control that prevent or delay contractual performance.
In plain English: if something neither side can reasonably control makes performance impossible or significantly interferes with it, who bears the consequences?
The answer depends primarily on what the contract actually says.
That is why the words "force majeure" by themselves do not tell you very much. A useful provision should identify the events it covers, explain what happens when one occurs, establish notice and mitigation requirements, and address how long performance can remain suspended.
Lawyer Explanation
Force majeure literally refers to a "superior force." In contracts, the term generally describes events beyond a party's reasonable control that may excuse or delay performance.
Common examples may include:
• hurricanes and other natural disasters; • fires or floods; • war or terrorism; • government orders or legal restrictions; • widespread labor disruptions; • certain transportation interruptions; • epidemics or pandemics, if the language covers them; and • other specifically defined events outside the parties' reasonable control.
The important word is may.
An event does not excuse performance simply because it is serious, unexpected, or expensive. Florida courts look closely at the language the parties actually agreed to and whether the event really caused or prevented the performance at issue.
What It Actually Does
A well-written provision generally answers several questions. What events qualify? Does the clause cover only specifically listed events, or does it also contain broader language such as circumstances beyond a party's reasonable control? Which obligations are affected? A hurricane that prevents delivery may excuse a delivery obligation without excusing an unrelated obligation to pay an invoice that was already due. What must the affected party do? Many provisions require prompt written notice and reasonable efforts to reduce the impact of the event. How long is performance excused? The clause may suspend performance only while the force majeure event actually prevents or delays it. Can the agreement eventually be terminated? A contract may allow one or both parties to terminate if the disruption continues for 30, 60, 90, or another specified number of days. Those details matter more than the label attached to the clause.
Why It Matters
One of the biggest mistakes in reviewing these provisions is assuming that any hardship qualifies.
Usually it does not.
A force majeure clause should not automatically excuse performance merely because:
• the contract became less profitable; • material prices increased; • the party underestimated its costs; • labor became more expensive; • financing became difficult; • demand fell; or • performance simply became inconvenient.
Whether any particular event qualifies depends on the wording of the agreement.
A force majeure provision may provide broader protection than common-law doctrines such as impossibility, but it still does not give a party unlimited discretion to walk away from its obligations.
Example
Assume a Florida manufacturer agrees to deliver specialized equipment by September 15.
A major hurricane destroys the facility where the equipment is being completed.
The contract defines hurricanes as force majeure events, requires written notice within five business days, requires reasonable mitigation efforts, and extends deadlines for the period of delay.
If the manufacturer complies with those requirements, the clause may protect it from being treated as in breach solely because the hurricane delayed delivery.
Change one fact, however, and the answer may change.
If the manufacturer was already three months behind schedule before the hurricane occurred, the force majeure clause may not excuse the preexisting delay.
That is why causation matters.
Common Language You May See
"Neither party shall be liable for any delay or failure to perform its obligations under this Agreement to the extent such delay or failure is caused by circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, government actions, or labor disputes..."
"The affected party shall provide prompt written notice of the force majeure event and shall use commercially reasonable efforts to resume performance as soon as practicable."
What Stewart Law Looks For
- What events qualify?
- Are hurricanes specifically covered?
- Are epidemics or government shutdowns covered?
- Are supply-chain interruptions covered?
- Does a subcontractor's or supplier's failure count?
- Does economic hardship count?
- What notice must be given?
- How quickly must notice be given?
- Is mitigation required?
- Are payment obligations excluded?
- Does the provision extend deadlines?
- Does it suspend only the affected obligation?
- Can either party terminate after an extended event?
- What happens to prepaid amounts?
- How does the clause interact with liquidated damages?
- How does it interact with termination provisions?
- Is the protection mutual, or does it favor only one party?
A clause that answers those questions clearly is much more useful than one paragraph of generic boilerplate.
Common Red Flags
A force majeure provision deserves closer attention when it:
- uses extremely broad language that could excuse performance for ordinary business difficulties
- includes economic conditions, market changes, or financial hardship as qualifying events
- provides no notice requirement or mitigation obligation
- excuses payment obligations as well as performance obligations
- contains no termination right if the event continues for an extended period
- is silent on the effect of a force majeure event on liquidated damages or delay penalties
- applies only to one party rather than both
Perspectives
Customer / Buyer
A customer usually wants force majeure defined carefully enough that the vendor cannot use ordinary business difficulties as an excuse for poor performance.
The customer may also want:
• rapid notice; • continuing mitigation obligations; • alternative sourcing requirements; • the ability to obtain services elsewhere; and • a termination right if the disruption lasts too long.
Vendor / Seller
The performing party generally wants enough protection to avoid liability when circumstances genuinely outside its control prevent performance.
Depending on the transaction, that may include protection for:
• natural disasters; • government restrictions; • widespread transportation failures; • shortages outside the vendor's reasonable control; or • failures within a critical supply chain.
The correct balance depends on the agreement and the risk each party can realistically control.
Market Variations
Stewart Law has substantial experience negotiating and reviewing commercial force majeure provisions.
That experience became especially important during the COVID-19 shutdown period, when businesses suddenly faced government restrictions, supply-chain interruptions, operational shutdowns, and other events that directly affected contractual performance.
In several matters, force majeure language that Stewart Law had carefully negotiated before those disruptions occurred became an important part of protecting the client's contractual position once performance was affected.
That real-world experience is one reason we do not treat force majeure provisions as boilerplate.
When a serious disruption actually happens, details that seemed minor during contract negotiations — the events covered, notice requirements, mitigation duties, exceptions, termination rights, and the relationship between force majeure and payment obligations — can become some of the most important language in the entire agreement.
The best time to think through those issues is before the unexpected event occurs.
Florida & Federal Considerations
Florida
Florida courts generally enforce contractual force majeure language according to its terms.
A force majeure clause can provide protection broader than common-law impossibility, but the event still must fall within the provision and actually affect the performance being excused.
That makes drafting important.
A clause written before the problem occurs determines who carries the risk after the problem arrives.
Related Terms
Contracts Where You'll Commonly See It
Frequently Asked Questions
Does force majeure cancel a contract?
Not necessarily. Many clauses temporarily excuse or extend performance rather than automatically terminate the agreement. Some provide a termination right only after the event continues for a specified period.
Does a hurricane automatically qualify as force majeure in Florida?
Not automatically. Hurricanes are commonly listed, but the specific contract controls. The party relying on the clause must also satisfy applicable notice, causation, mitigation, and other requirements.
Does force majeure excuse payment?
Sometimes, but many provisions intentionally exclude payment obligations. The language should be reviewed carefully.
Is increased cost enough to claim force majeure?
Ordinary increases in cost or economic hardship generally should not be assumed to qualify. The answer depends on the contract and the circumstances.
What is the difference between force majeure and impossibility?
Force majeure is a contractual allocation of risk. Impossibility is a common-law doctrine. A force majeure provision can define protection differently or more broadly than the common-law doctrine.
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