Force majeure clauses got a lot more attention after 2020. Five years and several appellate rulings later, the law has clarified what these clauses can and cannot do, and where the boilerplate language most contracts use falls short. Here is the working understanding for commercial contracts in 2026.
What force majeure actually is
A force majeure clause is a contractual provision that excuses one or both parties from performance when an extraordinary event makes performance impossible, illegal, or commercially impracticable. Without the clause, contract law gives you a much narrower set of doctrines (impossibility, frustration of purpose, impracticability) that courts apply reluctantly.
The clause is contractual: it works only because the parties agreed it would. Whatever the clause says it covers, that is what it covers. Whatever it does not say, it does not cover.
That sounds obvious until you read the clause in your contract and realize how much of the analysis depends on the exact wording.
What recent decisions clarified
Three lines of decisions from 2021 through 2025 sharpened the doctrine:
Specific enumeration matters. Courts have generally held that listed events (war, fire, flood, pandemic, government order, etc.) are the events the clause covers. A catch-all phrase like "or any other cause beyond the reasonable control of the party" usually has to be read in line with the enumerated events under the ejusdem generis canon, meaning the catch-all is limited to events similar in nature to those enumerated. Several COVID-era decisions held that pandemic was not covered when the clause did not list it, even when the catch-all was broad.
Foreseeability defeats the clause unless the contract says otherwise. A meaningful number of decisions have held that an event is not force majeure if it was reasonably foreseeable at the time of contracting. After 2020, pandemics are arguably foreseeable for any contract signed since then. After the 2022 invasion of Ukraine, supply chain disruptions from European conflict are arguably foreseeable. The fix: contracts can override the foreseeability default by stating that listed events qualify whether or not foreseeable.
Performance has to actually be impossible, not just expensive. The standard for force majeure is impossibility or impracticability, not increased cost. A 50 percent cost increase from materials inflation, supply chain disruption, or labor shortages generally does not qualify. The economic hardship has to rise to the level that performance is functionally impossible. Several 2023 and 2024 decisions reinforced this, parties trying to invoke force majeure to escape unfavorable economics did not prevail.
What your 2026 force majeure clause should cover
A modern force majeure clause should:
Enumerate the events broadly. Standard list: acts of God, fire, flood, earthquake, war, terrorism, civil unrest, government action, pandemic and epidemic, cyberattacks and ransomware, supply chain disruptions, labor strikes, and energy or transportation failures. Add the catch-all language but do not rely on it.
State whether foreseeability matters. Most parties want force majeure to apply whether or not the event was foreseeable. Say so explicitly.
Define impracticability. The clause should be clear about whether mere increased cost qualifies, or whether the event has to make performance impossible. Most commercial parties want the higher bar (impossibility), but specialty contracts (long-term supply, fixed-price construction) sometimes accept commercial impracticability.
Distinguish between excuse and termination. Force majeure can suspend performance (giving the affected party more time) or terminate the contract entirely. Most clauses provide for suspension during the event with a termination right if the event continues beyond a defined window (often 60 or 90 days).
Require notice. The affected party should have to give notice within a defined time (often 10 days) once the event becomes known. Without notice, the right to invoke force majeure can be waived.
Require mitigation. The affected party should have to use reasonable efforts to mitigate the impact. Force majeure is not a license to stop trying.
Common drafting failures
A few patterns that lead to disputes:
No supply chain language. Many pre-2020 contracts have force majeure clauses that do not explicitly list supply chain disruption. Courts have split on whether "acts of God" or "events beyond reasonable control" cover supply chain issues. Add it explicitly.
No cyberattack language. Ransomware attacks have shut down enough production lines that contracts now should list cybersecurity incidents as a force majeure event. Most contracts pre-2022 do not.
One-way clauses. Some templates give the force majeure benefit to one party only. For most commercial contracts, mutual force majeure is appropriate.
Carve-out for payment obligations. The standard is that force majeure does not excuse payment obligations, you have to pay even if your customer cannot deliver. Make sure the clause says that explicitly, because some courts read silence to mean payment is also excused.
What force majeure does not solve
A few things force majeure cannot do, even when well-drafted:
- Pure financial distress. If you cannot pay because your business is failing, that is not force majeure. The clause covers external events, not internal financial trouble.
- Loss of a key customer or supplier. Unless the supplier loss is itself caused by a force majeure event, losing a customer or supplier is a commercial risk you bore.
- Bad weather that is not extreme. Routine weather is not force majeure. Hurricanes, blizzards, and earthquakes are. Heavy rain that delays a delivery is not.
For events that fall outside force majeure, you might still have:
- Material adverse change clauses for M&A and financing contracts.
- Frustration of purpose as a common law doctrine if the contract underlying purpose is destroyed.
- Impracticability under Restatement Section 261 in extreme cases.
These doctrines are narrower than a well-drafted force majeure clause and harder to invoke.
When to update an old clause
If your contract has been in place since before 2020 and you have not updated the force majeure language, it is worth a review. The pandemic-era litigation made clear that older clauses often did not cover what the parties assumed they would.
Two practical moments to update:
- At renewal: any commercial contract coming up for renewal is a natural moment to refresh the clause.
- At amendment: any amendment to the contract for any reason is an opportunity to bring the force majeure language current.
If you are negotiating a new contract or amending an old one and want a contract attorney to review the force majeure clause, LawSensai can match you with one.