Force Majeure Clause Checklist: 10 Red Flags to Check Before You Sign

Force Majeure Checklist: 10 Points to Check

A force majeure clause can save your business from millions in liability — or leave you trapped in a contract you can't perform. Before you sign, go through this 10-point checklist. If your contract fails more than 3 of these checks, negotiate the clause before signing.

• 1. Covered Events — Does the clause list specific events (natural disasters, pandemics, war, government actions, strikes, supply chain failures)? A good clause lists specific events AND includes a catch-all ('any other event beyond the reasonable control of the affected party'). A bad clause only mentions 'Acts of God' — which courts may interpret as excluding man-made events like war or cyberattacks.
• 2. Pandemic/Epidemic Coverage — Post-COVID, this is non-negotiable. Does the clause explicitly mention 'pandemics,' 'epidemics,' and 'public health emergencies'? If it's missing, you're betting your business that another pandemic won't happen during the contract term.
• 3. Government Action Coverage — Beyond the virus itself, government responses (lockdown orders, travel bans, import/export restrictions) caused most of the disruption in 2020-2022. Does the clause cover 'government orders,' 'regulatory changes,' and 'executive orders'?
• 4. Supplier Cascading Effect — If your supplier can't deliver because their supplier was hit by force majeure, are you protected? Most basic clauses miss this. Look for language like 'force majeure affecting our suppliers or subcontractors shall also excuse our performance.'
• 5. Notice Requirements — How quickly must you notify the other party after a force majeure event? 48 hours is standard but unreasonable if your office just got destroyed by a hurricane. Aim for 'as soon as reasonably practicable' or 7-14 days.
• 6. Mitigation Obligation — Some clauses require you to 'use all reasonable efforts to overcome the force majeure event.' Fair. Others say 'use best efforts regardless of cost.' That could mean you're legally required to spend anything to perform — defeating the purpose of the clause.
• 7. Suspension vs. Termination — During a force majeure event, is performance just suspended, or does the clock keep ticking? A supplier who misses 3 months of deliveries due to a disaster shouldn't face immediate termination — but you also shouldn't be stuck waiting forever.
• 8. Right to Terminate After Extended Event — The most important clause most people skip. If the force majeure event continues for 30, 60, or 90 days, can either party walk away? Without this, you're legally trapped in a zombie contract — obligations suspended but can't be cancelled.
• 9. Payment Obligations During Force Majeure — Do you have to keep paying even during the event? This is common in commercial leases and can be devastating. If a hurricane shuts down your restaurant for 3 months, can the landlord still demand rent?
• 10. Mutual vs. One-Sided — Does the clause protect both parties equally, or only the larger/counterparty? If it excuses their non-performance but holds you to strict deadlines regardless of circumstances, it's a one-sided clause — negotiate it.

5 Force Majeure Red Flags

Beyond the checklist, these are the dealbreaker-level issues that should make you push back hard:

• Red Flag 1 — 'Acts of God' Only: If the clause only mentions 'Acts of God' with no list of specific events, it's dangerously narrow. Courts in many jurisdictions interpret 'Act of God' as only natural events (earthquakes, floods), excluding war, terrorism, strikes, pandemics, and government actions. A modern force majeure clause must be explicit.
• Red Flag 2 — Performance Must Continue 'At All Costs': Some clauses declare that force majeure 'shall not excuse or delay performance under any circumstances' — essentially nullifying the protection. This is surprisingly common in contracts drafted by large companies that want to shift all risk to the smaller party.
• Red Flag 3 — No Termination Right, Indefinite Suspension: If the clause says performance is suspended during force majeure but says nothing about when the suspension ends, you could be stuck forever. A proper clause says: 'If the force majeure event continues for more than [30/60/90] days, either party may terminate this Agreement upon written notice.'
• Red Flag 4 — Payment Carve-Out: 'Notwithstanding any force majeure event, all payment obligations shall continue.' This is standard in lease agreements and some supply contracts — but it defeats the purpose of force majeure for the payor. If you must keep paying regardless, you haven't been protected from anything.
• Red Flag 5 — Exclusively One-Sided: The force majeure clause only excuses the counterparty's performance. They get the benefit of the doubt, you get nothing. Force majeure should be mutual — both parties face risks they can't control.

What Is a Force Majeure Clause? (Quick Reference)

Force majeure (French for 'superior force,' pronounced 'fors ma-ZHUR') is a contract clause that frees parties from liability when an extraordinary, unforeseeable event beyond anyone's control prevents performance. In plain English: if a hurricane, war, or pandemic stops you from doing what you promised, you're not liable for breach of contract.

Without a force majeure clause, you'd rely on common law doctrines like 'impossibility' or 'frustration of purpose' — which are far harder to prove in court and vary significantly by jurisdiction. A well-written force majeure clause gives you a clear, contractual right to suspend or terminate when disaster strikes.

Force majeure became one of the most litigated contract provisions during COVID-19, generating thousands of court cases globally. The outcomes reshaped how these clauses are drafted today. If your contract was written pre-2020 or uses boilerplate language, you need to check it — use our free force majeure clause checker to spot gaps.

What Events Should a Force Majeure Clause Cover?

A comprehensive, modern force majeure clause should explicitly list these six categories AND include a catch-all. If your clause is missing any of these, it's a gap waiting to become a lawsuit.

Force Majeure After COVID-19

Pre-2020, force majeure was boilerplate that few people negotiated. Post-COVID, it's one of the most heavily negotiated clauses in commercial contracts. Key drafting changes in modern contracts:

• Explicit pandemic/epidemic inclusion — no longer relying on catch-all language that courts may interpret narrowly
• Government order coverage — shelter-in-place orders, travel restrictions, and regulatory shutdowns are now standard inclusions
• Reasonable notice periods — 7-14 days instead of 24-48 hours, recognizing that genuine disasters make immediate notice impossible
• Defined termination triggers — after 30-60 days of continuous force majeure, either party can terminate (this is the single most important improvement in modern drafting)
• Supplier cascading — explicitly covering disruptions in your supply chain, not just your own operations

How Courts Interpret Force Majeure

Courts apply three tests when a party invokes force majeure. Your clause needs to survive all three:

• Foreseeability — Was the event truly unforeseeable when the contract was signed? A hurricane hitting Florida in September is foreseeable. A global pandemic shutting down international travel was not (pre-2020). The more specific your listed events, the less this test matters — courts respect explicit lists.
• Causation — Did the force majeure event directly cause the non-performance, or was your business already struggling? You must show the event was the proximate cause of your inability to perform. Documentation (government orders, supplier notices, news reports) is critical evidence.
• Mitigation — Did you take reasonable steps to minimize the impact? Courts expect parties to try to perform despite the event — finding alternative suppliers, working remotely, partial delivery. You can't just throw your hands up and declare force majeure without first trying to work around the problem.