Force Majeure Clauses in 2026: What Changed After COVID and What to Include

Before March 2020, force majeure was the clause nobody read. Buried between the notice provision and the severability section, it was copy-pasted from one contract template to the next without a second thought. Then a pandemic shut down the global economy, and lawyers discovered that a clause written to handle hypothetical earthquakes was useless against a real public health emergency.

The litigation wave that followed was massive. Courts across the country addressed force majeure claims in hundreds of COVID-related cases, and the results were overwhelmingly consistent: force majeure clauses are interpreted narrowly. If “pandemic” was not listed as a triggering event, many courts held that COVID did not qualify. If the clause required performance to be “prevented” rather than merely “hindered,” many businesses that could still perform — just at greater cost or difficulty — had no defense.

Six years later, force majeure drafting has permanently changed. If your force majeure clause still looks like it did in 2019, it is dangerously outdated. This guide covers what changed, the 10 elements every modern clause needs, and sample language you can adapt for your next agreement. Upload any contract to Clause Labs to check whether your force majeure clause meets 2026 standards — free, no signup required.

What Force Majeure Actually Means

Force majeure — French for “superior force” — is a contractual provision that excuses one or both parties from performing their obligations when extraordinary events occur beyond their control. It is not a common law doctrine in the United States. It is purely contractual: if the contract does not include a force majeure clause, neither party can invoke it.

This is a critical distinction that many business clients misunderstand. Unlike frustration of purpose (which exists at common law in most U.S. jurisdictions) or impracticability under the Uniform Commercial Code Section 2-615, force majeure only exists if the parties put it in the contract. No clause, no defense.

Three additional principles shape how courts analyze force majeure:

Force majeure clauses are interpreted narrowly. The Fifth Circuit confirmed this in Mieco LLC v. Pioneer Natural Resources USA Inc. (2024), holding that force majeure provisions in a natural gas contract required strict adherence to the contract’s specific language. Courts do not stretch force majeure clauses to cover events the parties did not explicitly contemplate.

The invoking party bears the burden of proof. You must prove that the event qualifies under the clause, that it actually caused your inability to perform, and that you took reasonable steps to mitigate the impact.

General catch-all language is unreliable. “Events beyond the reasonable control of the affected party” sounds broad, but courts frequently limit catch-all provisions to events similar in kind to those specifically listed (the ejusdem generis rule). If your clause lists “fire, flood, earthquake” and a pandemic hits, the catch-all may not save you.

What COVID Changed

Before COVID: Standard Force Majeure (Pre-2020)

The typical force majeure clause before 2020 looked like this:

“Neither party shall be liable for any failure or delay in performing its obligations under this Agreement to the extent that such failure or delay results from acts of God, war, terrorism, earthquake, flood, fire, or other natural disasters.”

Short. Generic. Copy-pasted. No one negotiated it because no one expected to invoke it. The clause was in the contract because the template included it, not because anyone thought about what it needed to cover.

After COVID: Modern Force Majeure (2026)

The pandemic exposed every weakness in the old model:

• No mention of pandemics, epidemics, or public health emergencies. When COVID hit, parties argued whether a virus qualified as an “act of God.” Courts split — some said yes, many said no.
• No mention of government orders. Lockdowns, travel bans, and business closure orders were not natural disasters. Were they “other events beyond reasonable control”? Courts disagreed.
• No provision for supply chain disruption. Manufacturers who could not source raw materials had contracts that only excused performance for events at the production facility itself.
• No notice or mitigation requirements. Parties invoked force majeure months after the event began, with no documentation of what they did to minimize the impact.
• No termination trigger. Contracts suspended performance indefinitely, creating “zombie contracts” — not active, not terminated, just in limbo.

Modern force majeure clauses, drafted in light of six years of post-COVID litigation, address every one of these gaps. As WilmerHale’s analysis recommended early in the pandemic, parties should draft force majeure provisions with both specificity and flexibility.

The 10 Elements of a Well-Drafted Force Majeure Clause (2026)

1. Triggering Events List — Specific Plus Catch-All

List specific events for certainty. Add a catch-all for flexibility. Include both.

Specific events that should be listed explicitly:
– Pandemic, epidemic, public health emergency
– Government orders, regulations, sanctions, embargoes
– War, armed conflict, terrorism, civil unrest
– Natural disasters (earthquake, flood, hurricane, wildfire, volcanic eruption)
– Cyberattack, data breach, critical infrastructure failure
– Supply chain disruption
– Labor shortages, strikes, lockouts
– Utility failures (power, telecommunications, internet)

Catch-all language:

“…or any other event beyond the reasonable control of the affected party that could not have been reasonably foreseen at the time of entering into this Agreement.”

The “reasonably foreseen” qualifier matters. Post-COVID, parties cannot claim a pandemic is unforeseeable — it already happened. The catch-all needs to account for genuinely novel events while excluding known risks that should be managed through other contractual provisions.

Notably, cyberattacks are increasingly included in modern force majeure clauses. The Jaguar Land Rover cyberattack in 2025, estimated at GBP 1.9 billion in losses affecting 5,000+ businesses, demonstrated that cyber events can disrupt supply chains as severely as natural disasters.

2. Causation Standard — “Prevented” vs. “Hindered” vs. “Delayed”

The single most litigated word in force majeure clauses is the verb connecting the event to the performance failure.

Standard	Threshold	Effect on Invoking Party
Prevented	Performance must be impossible	Highest burden — most difficult to invoke
Hindered	Performance is significantly more difficult or burdensome	Middle ground — reasonable balance
Delayed	Any delay in performance qualifies	Lowest burden — easiest to invoke

Recommendation: Use “prevented, hindered, or delayed” to give the invoking party reasonable protection. If you represent the party more likely to receive performance (the buyer, the client), you may prefer “prevented” alone — it limits the other side’s ability to invoke force majeure for mere inconvenience.

The UK Supreme Court’s decision in RTI Ltd v. MUR Shipping BV (2024) clarified that the causation standard interacts with mitigation obligations: the force majeure event, not the party’s own failure to act, must be the cause of the performance failure.

3. Notice Requirements

A force majeure clause without notice requirements is a clause that invites abuse. Specify:

• Timeline: Written notice within 5-10 business days of the force majeure event commencing.
• Content: Nature of the event, expected duration, specific obligations affected, steps being taken to mitigate.
• Ongoing updates: Regular updates (every 14-30 days) during the force majeure period.
• Consequences of failure: Late or missing notice waives the right to invoke force majeure.

Sample notice provision:

“The affected party shall provide written notice to the other party within seven (7) business days of becoming aware of the force majeure event, describing the nature of the event, the obligations affected, the expected duration, and the mitigation measures being undertaken. The affected party shall provide updated notices at least every fourteen (14) days during the continuation of the force majeure event.”

4. Mitigation Obligation

Force majeure does not mean “stop working and wait.” The affected party must take reasonable steps to minimize the impact.

What “reasonable mitigation” includes:
– Sourcing alternative suppliers or materials
– Reassigning personnel
– Adjusting timelines or sequencing
– Using alternative methods of performance
– Communicating proactively with affected stakeholders

What it does not include:
– Spending disproportionate sums to overcome the event
– Accepting non-contractual performance from the other party (as clarified in RTI Ltd v. MUR Shipping)
– Taking on unreasonable business risk to maintain performance

Key principle: Failure to mitigate can void the force majeure defense entirely. Document every mitigation step.

5. Duration and Termination Right

How long can a force majeure event suspend performance before one or both parties can terminate? Without a defined trigger, you get zombie contracts — suspended indefinitely, impossible to plan around.

Standard approach: Either party may terminate if the force majeure event continues for 60-90 consecutive days, or 120 cumulative days in any 12-month period.

What to specify:
– Termination notice period (typically 30 days after the duration threshold)
– Whether termination is automatic or requires written notice
– Treatment of prepaid fees, deposits, and work-in-progress upon termination
– Wind-down obligations after termination

6. Allocation of Risk During Force Majeure

What happens to money during the suspension period?

• Payment obligations: Are they suspended too, or does payment continue? In most commercial agreements, payment obligations should be suspended proportionally when performance is excused.
• Partial performance: If the affected party can perform partially, what are the obligations on both sides?
• Mitigation costs: Who pays for the costs of mitigation measures?

This is the most commonly overlooked element in force majeure clauses, and it generates the most post-event disputes.

7. Exclusions

Force majeure is not a general excuse clause. Define what it does not cover:

• Economic hardship. A contract becoming more expensive to perform is not force majeure. Prices fluctuate. Markets shift. That is business risk, not force majeure.
• Currency fluctuation. Exchange rate changes are foreseeable market risks.
• Market downturns. A recession, declining demand, or competitive pressure is not a force majeure event.
• Known risks at time of contracting. If a risk was known or foreseeable when the contract was signed, it should not qualify. Post-2020, pandemics are arguably foreseeable — courts are already weighing this question in international trade disputes.
• Self-inflicted events. Events caused by the invoking party’s own acts or omissions do not qualify.

8. Insurance Interaction

Force majeure clauses and business interruption insurance overlap — but not perfectly. Address:

• Whether the invoking party must first look to insurance before invoking force majeure
• Whether insured losses reduce the force majeure protection
• Requirements for maintaining specific insurance coverage for force majeure-type risks
• Cooperation obligations for insurance claims processing

9. Dispute Resolution for Force Majeure Claims

Force majeure disputes are time-sensitive. By the time a standard arbitration resolves, the underlying event may be over. Consider:

• Expedited resolution: 30-day expert determination for disputes about whether an event qualifies
• Interim measures: Provisional orders maintaining the status quo during the dispute
• Default rule: If no resolution within the expedited period, the force majeure claim stands pending full determination

10. Post-Force Majeure Obligations

What happens when the force majeure event ends?

• Resumption timeline: How quickly must the affected party resume performance?
• Catch-up provisions: Is the affected party entitled to additional time to make up for the suspension period?
• Changed circumstances: If the economic or operational landscape has permanently changed, is there a mechanism for renegotiating terms?
• Documentation: Final report on the force majeure event, its impact, and the mitigation measures taken

Force Majeure by Contract Type

Force majeure operates differently depending on the contract type. Here are the unique considerations for each.

Supply and Procurement Contracts. The most heavily negotiated force majeure clauses post-COVID. Key issues: raw material shortages, logistics disruptions, alternative sourcing obligations. Baker McKenzie’s analysis of 2025 tariff-related supply chain uncertainty confirms that force majeure provisions in supply contracts now routinely include trade sanctions, export controls, and tariff escalation as triggering events.

SaaS Agreements. Tension between uptime SLAs and force majeure. A force majeure clause that excuses downtime effectively guts the SLA. Best practice: force majeure excuses the SLA credits, but prolonged outages (beyond 72 hours) trigger termination rights regardless. See our SaaS agreement review guide for the full clause-by-clause analysis.

Commercial Leases. Rent abatement during force majeure events is now standard in many markets. Key negotiation points: whether rent is suspended or deferred (deferred means you still owe it later), and whether tenant improvements and build-out timelines are extended.

Employment Agreements. Force majeure in employment contracts addresses remote work mandates, furloughs, layoff triggers, and return-to-office requirements. Post-COVID, many employers include pandemic-specific provisions authorizing temporary remote work without modifying the employment relationship. For a broader look at what to watch for when reviewing these agreements, see our limitation of liability clause guide, which covers risk allocation provisions that interact directly with force majeure.

Construction Contracts. Delay clauses and force majeure clauses often exist separately. Force majeure typically extends the timeline and excuses liquidated damages, but does not entitle the contractor to additional compensation for idle resources.

Force Majeure Red Flags

When reviewing any contract, flag these issues. For a broader framework on spotting contract problems, see our red flags checklist.

No force majeure clause at all. This leaves both parties relying on common law doctrines (impossibility, impracticability, frustration of purpose) that are narrower and less predictable than a well-drafted contractual provision. Our free AI contract review tool flags missing force majeure provisions as part of its standard analysis.

Pre-2020 boilerplate. If the clause lists “acts of God, war, terrorism, earthquake, flood, fire” and nothing else, it was written before anyone thought about pandemics, cyberattacks, or government-ordered shutdowns. It needs an update.

One-sided force majeure. Only one party can invoke the clause. Unless there is a specific commercial reason for this asymmetry (rare), force majeure should be mutual.

No mitigation requirement. Without a mitigation obligation, the invoking party can stop performing entirely and wait indefinitely. This creates moral hazard.

No duration limit or termination trigger. Zombie contract risk. If force majeure can suspend performance forever, neither party can plan, and the non-affected party is trapped.

“Including but not limited to” without specific events. Sounds broad but may be too vague to enforce. Courts want specificity. A list of specific events followed by a catch-all is more reliable than a catch-all alone.

Force majeure that excuses payment obligations. Unusual and risky for the non-affected party. In most commercial contexts, force majeure should excuse delivery or service obligations, not payment for work already performed.

Sample Modern Force Majeure Clause

Here is a balanced, post-2026 force majeure clause with annotations explaining each provision:

Force Majeure. Neither party shall be liable for any failure or delay in performing its obligations under this Agreement (other than payment obligations for services already rendered) to the extent that such failure or delay is caused by a Force Majeure Event, provided that the affected party: (a) provides written notice to the other party within seven (7) business days of becoming aware of the Force Majeure Event; (b) uses commercially reasonable efforts to mitigate the impact of the Force Majeure Event; and (c) resumes performance promptly upon cessation of the Force Majeure Event.

“Force Majeure Event” means any event beyond the reasonable control of the affected party, including but not limited to: pandemic, epidemic, or public health emergency; government order, regulation, sanction, or embargo; war, armed conflict, terrorism, or civil unrest; natural disaster; cyberattack or critical infrastructure failure; supply chain disruption; labor shortage, strike, or lockout; or utility failure — provided that such event was not reasonably foreseeable at the time this Agreement was executed and is not caused by the affected party’s acts or omissions.

If a Force Majeure Event continues for more than sixty (60) consecutive days or ninety (90) cumulative days in any twelve-month period, either party may terminate this Agreement upon thirty (30) days’ written notice, without liability for such termination.

This clause covers the essential elements: specific triggering events with a catch-all, a foreseeability qualifier, a payment carve-out, notice requirements, mitigation obligations, resumption obligation, and a termination trigger. Adapt it to the specific deal dynamics, contract type, and risk allocation appropriate for your transaction. Need to check whether an existing contract’s force majeure clause meets this standard? Upload it to Clause Labs for a free AI analysis — the tool compares your clause against each of the 10 elements above in under 60 seconds.

How AI Handles Force Majeure Review

AI contract review tools are particularly effective at force majeure analysis because the task is largely structural: is the clause present, what events does it cover, does it include required sub-provisions?

Clause Labs specifically:
– Detects presence or absence of a force majeure clause
– Flags outdated (pre-2020) language that lacks modern triggers
– Identifies missing elements (no notice requirement, no mitigation obligation, no termination trigger)
– Checks for one-sided provisions
– Compares the clause against current market standards

Upload your contract free to check whether your force majeure clause meets current standards. The analysis takes under 60 seconds — 3 free reviews per month, no credit card required.

Frequently Asked Questions

Does every contract need a force majeure clause?

Not necessarily, but most commercial contracts benefit from one. Without a force majeure clause, parties must rely on common law doctrines — impossibility, impracticability, or frustration of purpose — which have higher thresholds and less predictable outcomes. If the contract involves ongoing performance obligations (service delivery, supply, construction), a force majeure clause is strongly recommended. For simple, one-time transactions, the risk may not justify the drafting investment.

Can I invoke force majeure for economic hardship?

Almost certainly not. Courts consistently hold that increased costs, financial difficulties, or market downturns do not constitute force majeure events. Norton Rose Fulbright’s analysis of COVID-related force majeure claims confirms that economic hardship, standing alone, is insufficient. A contract becoming unprofitable is not the same as performance becoming impossible.

What if my contract was signed before COVID — is the force majeure clause still valid?

Yes, the clause is valid as written. The question is whether it covers the event you want to invoke. A pre-COVID clause that lists “pandemic” is fine. A pre-COVID clause that lists only “acts of God, war, earthquake” may not cover a pandemic — depending on the jurisdiction and whether the court applies ejusdem generis to the catch-all language. The clause does not need to be re-drafted to be valid, but it may need to be re-drafted to be useful.

Does force majeure apply to payment obligations?

In most contracts, no. The standard position is that force majeure excuses performance obligations (delivery, service, construction) but not payment for work already performed. A force majeure clause that excuses payment obligations is unusual and should be a red flag in any contract review. Some contracts split the difference: payment obligations may be deferred (not forgiven) during the force majeure period.

Can both parties invoke force majeure simultaneously?

Yes, and it happens more often than you might expect. A supply chain disruption can simultaneously prevent the manufacturer from delivering and the buyer from receiving goods. When both parties invoke force majeure, the clause should specify how mutual invocation is handled — typically, both parties are relieved of their respective obligations for the duration of the event, with either party able to terminate if the event exceeds the duration threshold.

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This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for advice specific to your situation.