Real estate documents allocate the risk of events preventing performance, and the allocation is asymmetric by convention.
Leases. Force majeure clauses typically excuse the landlord’s performance obligations and expressly do not excuse the tenant’s obligation to pay rent. Tenants seeking abatement must negotiate it expressly, and post-pandemic negotiations have made partial abatement provisions more common.
Construction contracts. Excusable delay extends the schedule; whether it is also compensable — entitling the contractor to additional general conditions costs — is a separate question the contract should answer.
Common enumerated events. Acts of God, war, terrorism, labour disputes, government orders, epidemics, material shortages and utility failures. Post- pandemic drafting lists epidemics and government closure orders expressly.
Financial inability is universally excluded.
Notice requirements as conditions to relief, with prompt written notice and an estimate of duration.
Mitigation obligations throughout, and an obligation to resume promptly.
Termination. A right for either party to terminate if the event continues beyond a stated period, which is what prevents an indefinite suspension.
Common law fallbacks — impossibility, impracticability and frustration — are narrow and rarely provide relief where the contract is silent.