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 excuses one or both parties from performing their contractual obligations when an extraordinary event beyond their control makes performance impossible, impractical, or illegal.
Common examples include natural disasters, wars, government actions, and other events that the parties could not reasonably have anticipated or prevented.
Lawyer Explanation
A force majeure provision allocates the risk of extraordinary, unforeseeable events that prevent or delay contractual performance. When a qualifying event occurs, the affected party is typically excused from performance for the duration of the event — without being in breach of contract.
The scope of the clause depends heavily on its language. Some clauses list specific qualifying events; others use broader language. The clause typically requires the affected party to give prompt notice, take reasonable steps to mitigate the impact, and resume performance when the event ends.
Force majeure is distinct from the common-law doctrines of impossibility and frustration of purpose, though the concepts overlap. The contractual clause governs if one exists.
What It Actually Does
A force majeure clause answers: "If something completely outside our control prevents us from performing, are we still in breach of contract?" For example, a manufacturer that cannot deliver goods because a hurricane destroyed its facility may invoke a force majeure clause to excuse the delay — provided the event qualifies under the contract language and proper notice is given.
Why It Matters
Without a force majeure clause, a party that cannot perform due to an extraordinary event may still be liable for breach of contract. The clause provides a contractual safety valve for genuinely unforeseeable disruptions.
However, the clause must be carefully drafted. A clause that is too broad may excuse performance for ordinary business difficulties. A clause that is too narrow may fail to cover events the parties intended to address.
The clause should be read alongside provisions addressing notice requirements, mitigation obligations, termination rights, and liquidated damages.
Example
A company contracts with a supplier to deliver materials by a specific date. Before the delivery date, a major hurricane strikes the supplier's region, destroying its warehouse and making delivery impossible.
If the contract contains a force majeure clause covering natural disasters, the supplier may be excused from the delivery obligation for the duration of the disruption — provided it gives proper notice and takes reasonable steps to resume performance.
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 as force majeure under the contract?
- Does the clause use a specific list, a general standard, or both?
- Does economic hardship or market disruption qualify?
- What notice is required to invoke the clause?
- What mitigation obligations apply?
- Does the clause excuse payment obligations as well as performance obligations?
- How long may performance be suspended before either party may terminate?
- Does the clause address partial performance during a force majeure event?
- Are there any carve-outs for events that were foreseeable at the time of contracting?
- Does the clause interact with liquidated damages or delay provisions?
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
The party receiving performance will generally want a narrow definition of qualifying events, a prompt notice requirement, a mitigation obligation, and a termination right if the event continues beyond a reasonable period.
Vendor / Seller
The party performing under the contract will generally want a broad definition of qualifying events, a reasonable notice period, and protection from damages during the period of excused performance.
Florida & Federal Considerations
Florida
Florida courts generally enforce force majeure clauses according to their terms. Whether a specific event qualifies depends on the contract language and the facts.
Florida also recognizes the common-law doctrines of impossibility and frustration of purpose, which may apply in limited circumstances even without a contractual force majeure clause. The contractual clause governs when one exists.
Related Terms
Contracts Where You'll Commonly See It
Frequently Asked Questions
Does a force majeure clause excuse all contract obligations?
No. A force majeure clause typically excuses only the specific obligations affected by the qualifying event, and only for the duration of the event. Payment obligations and other unaffected duties generally continue.
Does economic hardship or a market downturn qualify as force majeure?
Generally not. Most force majeure clauses cover extraordinary external events beyond a party's control, not ordinary business risks or economic conditions. Whether a specific event qualifies depends on the contract language.
What notice is typically required to invoke force majeure?
Most force majeure provisions require the affected party to give prompt written notice of the event and its expected impact. Failure to provide timely notice may affect the ability to invoke the clause.
Can a party terminate the contract if a force majeure event continues for a long time?
Many force majeure clauses include a provision allowing either party to terminate if the event continues beyond a specified period. Whether that right exists depends on the contract.
Did COVID-19 qualify as a force majeure event?
Whether COVID-19 qualified as a force majeure event depended on the specific contract language, the jurisdiction, and the nature of the affected obligations. Courts reached different conclusions based on these factors.
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