How to Draft a Force Majeure Clause in Contracts

A force majeure clause is a contractual provision that allocates risk when unforeseen events prevent, hinder, or delay performance of contractual obligations. In England and Wales, force majeure is not a standalone doctrine in law. It only exists if expressly written into a contract, and its effect depends entirely on the wording used by the parties.

Courts interpret force majeure clauses strictly. If the clause does not clearly cover the event in question, the party seeking to rely on it will usually fail. This makes careful drafting essential in commercial contracts, particularly in supply agreements, construction contracts, service arrangements, and international trade.

This article explains how to draft a force majeure clause, what legal principles apply, and the key drafting elements that determine whether the clause will be enforceable and effective.

What Force Majeure Means in English Contract Law

Under English law, force majeure has no fixed legal definition. It is purely a contractual mechanism. Its scope depends on the agreement between the parties, and courts will not imply a standard meaning.

Typical force majeure events include:

• Natural disasters (flood, fire, storm)
• War, terrorism, or civil unrest
• Epidemics or pandemics
• Government restrictions or regulatory changes
• Industrial action
• Supply chain disruption outside a party's control

The key legal principle is that the event must be beyond the reasonable control of the affected party and must prevent or significantly hinder performance, depending on the wording used.

Recent legal commentary confirms that force majeure clauses are interpreted strictly and must be clearly drafted to operate effectively.

Why Drafting a Force Majeure Clause Matters

A well-drafted clause determines:

• Whether contractual obligations are suspended or terminated
• Whether deadlines are extended
• Whether liability for breach is excluded
• Whether parties can terminate long-term agreements
• How commercial risk is allocated between parties

Poor drafting often leads to disputes, particularly where events like pandemics, sanctions, or supply disruptions occur.

Key Elements of a Force Majeure Clause

1. Clear definition of force majeure events

The clause should define what qualifies as a force majeure event. There are two common approaches:

• Closed list (specific events only)
• Open list with a catch-all provision (“any event beyond reasonable control”)

A strong clause usually combines both.

Typical inclusions:

• Acts of God (flood, earthquake, fire)
• War, terrorism, civil unrest
• Government action or regulatory changes
• Epidemics and pandemics
• Labour disputes and strikes
• Supply chain failures outside control

Industry-specific risks should be added where relevant.

2. Threshold for triggering the clause

The clause must specify the level of impact required. Common thresholds include:

• Prevents performance (high threshold)
• Hinders performance
• Delays performance
• Materially affects performance

A higher threshold gives more protection to the non-affected party, while a lower threshold makes relief easier to claim.

3. Causation requirement

The clause should require a direct link between the event and inability to perform.

Courts generally expect the affected party to show:

• The event caused non-performance
• Performance was not possible despite reasonable efforts

Without this link, the clause may not apply.

4. Notice requirements

Most enforceable clauses require prompt written notice, including:

• Description of the event
• How it affects performance
• Expected duration
• Steps being taken to mitigate impact

Failure to comply with notice requirements can prevent reliance on the clause.

5. Mitigation obligations

A properly drafted clause should require the affected party to:

• Take reasonable steps to avoid or reduce impact
• Continue performance where possible
• Seek alternative methods of performance

Courts often interpret mitigation obligations strictly, and failure to mitigate can invalidate reliance on force majeure.

6. Consequences of a force majeure event

The clause must clearly set out what happens if it is triggered. Common outcomes include:

• Suspension of obligations
• Extension of time for performance
• Partial performance obligations
• Right to terminate after a defined period

Without clear consequences, disputes arise over whether obligations are paused or extinguished.

7. Duration and termination rights

Long-lasting force majeure events should be addressed. Clauses often include:

• A defined time limit (e.g., 30–90 days)
• Right for either party to terminate if the event continues
• Conditions for restarting performance

This avoids indefinite contractual uncertainty.

8. Allocation of risk and exclusions

Drafting should clarify what is not force majeure, such as:

• Lack of funds or financial hardship
• Internal operational failures
• Supplier insolvency (unless specifically included)
• Management decisions within control

This prevents over-broad reliance on the clause.

9. Relationship with other contractual provisions

A force majeure clause should be consistent with:

• Termination clauses
• Suspension rights
• Liability and limitation clauses
• Change control provisions

Conflicts between clauses can weaken enforceability or create ambiguity.

Legal Interpretation Principles

English courts apply strict contractual interpretation principles:

• The clause is interpreted according to its exact wording
• There is no automatic legal definition of force majeure
• Broad or vague wording can be unenforceable
• Each case depends on the contract as a whole

Courts also require proof that performance was genuinely affected, not simply made more expensive or inconvenient.

Force Majeure vs Frustration

Force majeure is often confused with the doctrine of frustration.

• Force majeure: contractual provision agreed by parties
• Frustration: common law doctrine where contract is automatically discharged due to unforeseen events making performance impossible or radically different

Where a force majeure clause exists, it usually displaces frustration by providing a contractual route for dealing with disruption.

Common Drafting Mistakes

1. Overly vague definitions

Phrases like “events beyond control” without examples can lead to disputes.

2. No clear consequences

Failing to specify suspension or termination leads to uncertainty.

3. No causation requirement

Without linking the event to non-performance, the clause is weak.

4. Missing notice provisions

Late notification can invalidate reliance on the clause.

5. No mitigation duty

Courts expect parties to reduce losses where possible.

Practical Example Structure

A typical clause structure includes:

• Definition of force majeure event
• Threshold for activation
• Exclusions
• Notice requirements
• Mitigation obligations
• Effects on performance
• Termination after prolonged event
• General provisions (e.g., survival of obligations)

Commercial Context and Use Cases

Force majeure clauses are particularly important in:

• Construction contracts (delays, materials shortages)
• International supply agreements (border closures, sanctions)
• Technology and hosting services (infrastructure failure, cyber incidents)
• Manufacturing contracts (factory shutdowns, logistics disruption)

Each sector requires tailored drafting reflecting specific operational risks.

Risks of Poor Drafting

Weak clauses can lead to:

• Liability for breach despite unforeseen events
• Loss of contractual protection during disruption
• Litigation over interpretation
• Increased financial exposure
• Breakdown of long-term commercial relationships

Key Takeaways

Drafting an effective force majeure clause requires precise definition of triggering events, clear thresholds for activation, strict causation language, detailed notice and mitigation obligations, and explicit consequences such as suspension or termination. In England and Wales, courts interpret these clauses strictly, and there is no implied legal definition of force majeure. The effectiveness of the clause depends entirely on careful, structured drafting aligned with the commercial context of the contract.