{"id":3809,"date":"2026-03-10T15:19:41","date_gmt":"2026-03-10T15:19:41","guid":{"rendered":"https:\/\/itlawco.com\/?p=3809"},"modified":"2026-03-10T15:32:50","modified_gmt":"2026-03-10T15:32:50","slug":"force-majeure-in-commercial-contracts","status":"publish","type":"post","link":"https:\/\/itlawco.com\/fr\/force-majeure-in-commercial-contracts\/","title":{"rendered":"Force majeure in commercial contracts"},"content":{"rendered":"\n\t\t
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Most force majeure clauses fail when they’re needed most. Not because the event doesn’t qualify, but because the clause was poorly drafted, the notice was late, or nobody built an evidentiary file. COVID-19, the CrowdStrike outage<\/a>, the QatarEnergy declarations<\/a>, the Red Sea crisis<\/a>: each one exposed the same gap. The clause that seemed fine at signing became useless under real pressure. This article explains what every force majeure clause must contain, how courts actually interpret them, and what separates the provisions that hold from the ones that don’t.<\/p>\n<\/div>\n\n\n\n\n

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Key questions this article answers<\/h2>\n
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  1. What are the essential components every force majeure clause must include to be enforceable?<\/li>\n
  2. What is the difference between force majeure and the common-law doctrines of frustration and impossibility?<\/li>\n
  3. How should force majeure clauses be tailored for construction, energy, technology, maritime, and manufacturing contracts?<\/li>\n
  4. What drafting techniques defeat restrictive judicial canons like eiusdem generis?<\/li>\n
  5. How do you invoke force majeure correctly and what procedural failures will defeat an otherwise valid claim?
    \n6. What do COVID-19, the CrowdStrike outage, the QatarEnergy declarations, and the Suez Canal blockage teach us about modern force majeure drafting?<\/li>\n<\/ol>\n<\/div>\n\n\n\n\n
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    Who this article is for<\/h2>\n

    Written for lawyers and in-house counsel drafting commercial contracts; procurement and contract managers negotiating cross-border deals; risk officers mapping exposure to geopolitical and technology disruption; and executives who want to understand what the force majeure clause in their agreements actually does. Covers English, US, and South African law, plus civil law frameworks and key instruments: ICC, UNIDROIT, FIDIC, BIMCO, UCC, CISG.<\/p>\n<\/div>\n\n\n\n\n

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    The doctrinal foundation<\/h2>\n

    The tension at the heart of every contract<\/h3>\n

    Contracts rest on a simple principle: pacta sunt servanda<\/em> \u2014 agreements must be honoured. Force majeure is the exception. It says: when something truly extraordinary happens, and it prevents you from performing through no fault of your own, the law won’t hold you to your promise. The clause translates that principle into a specific, negotiated allocation of risk.<\/p>\n

    Note what it isn’t. Force majeure is not an escape route from an unprofitable deal. It’s not a shield for poor planning. Courts read it narrowly because that’s how the parties wrote it, and because the alternative would make contracts unenforceable every time circumstances shifted.<\/p>\n

    The common law and civil law divide<\/h3>\n

    In common law jurisdictions\u2014England, the US, Australia, South Africa\u2014force majeure doesn\u2019t exist in the general law. There’s no inherent right to be excused from a contract because something went wrong. Without an express clause, you’re left with the much narrower doctrines of frustration (England), impossibility (US), or supervening impossibility (South Africa). These are blunt instruments: they terminate the contract automatically, and they apply in far fewer situations than most people expect.<\/p>\n

    However, there\u2019s a trap here most drafters miss. A badly written force majeure clause doesn\u2019t just fail to help you; it actively makes things worse. Courts apply the clause first. Frustration and impossibility only come into play if the clause doesn’t cover the event. So a clause that triggers but then fails on procedural grounds\u2014say, because notice was late\u2014can leave you worse off than if you\u2019d written no clause at all.<\/p>\n

    Alternatively, civil law systems are different. France, Germany, and China all codify force majeure by statute. A contractual clause can refine the statutory framework, but even without one, courts have a default regime. This gives civil law drafters more flexibility, but also less control, since mandatory statutory rules may constrain what the parties can agree.<\/p>\n

    Governing law is not a formality. It determines how much work the clause has to do and how courts will interpret it. Choose it deliberately.<\/p>\n

    \nA force majeure clause is a contractual allocation of risk for supervening events, not a general escape hatch from an unprofitable bargain. Courts read them narrowly, and with good reason.\n<\/p><\/blockquote>\n

    From absolute impossibility to commercial impracticability<\/h3>\n

    Traditional common law demanded physical impossibility before excusing performance. The US moved on from this with UCC Section 2-615, which allows relief when performance becomes \u201cimpracticable\u201d, so excessively burdensome that it defeats the contract\u2019s basic assumptions.<\/p>\n

    This matters for one specific drafting reason: \u201cprevents\u201d, \u201chinders\u201d, and \u201cimpedes\u201d are not synonyms. They impose different thresholds.<\/p>\n