Enumerated events, a catch-all, and the obligations that survive.
Esshaki Legal Media TeamCurrent as of February 2024
Force majeure excuses performance prevented by events outside a party’s control.
Because it is a creature of contract, the clause’s wording controls almost
entirely.
Enumerated events. Specific listing matters, because catch-all language is
often construed narrowly under principles limiting general words to the class of
those enumerated. Post-pandemic drafting routinely lists epidemics, government
orders, and supply chain disruption expressly.
The causal standard. Prevented, hindered or delayed are materially different
thresholds. Prevention is the strictest and the default in many older clauses.
Foreseeability and control. Most clauses require the event to be beyond the
party’s reasonable control and not caused by its fault. Some add that it must
have been unforeseeable at contracting, which excludes risks known at signing.
Economic hardship. Increased cost is generally excluded unless expressly
included. A party seeking relief from price movements needs a separate hardship
or price adjustment clause.
Consequences. Suspension rather than termination, with a right to terminate
if the event continues beyond a stated period. Whether payment obligations are
suspended should be addressed expressly — most clauses excuse performance but
not payment for goods already delivered.
Notice. Prompt written notice with a description and expected duration,
often a condition precedent to relief, and mitigation obligations throughout.