Article · Commercial

Force Majeure After the Pandemic: What Actually Excuses Performance

Type
Article
Jurisdiction
National
Date
2025-03-12
Topic
Commercial

Force majeure is not a doctrine; in almost every American jurisdiction it is a clause, and it means exactly and only what its words say. This article explains how courts actually construe those clauses, beginning with the enumerated-versus-catchall problem and the ejusdem generis rule that strips catchalls of most of their apparent breadth. It then addresses the causation standard that decides most cases, the difference between a clause requiring that performance be prevented and one that reaches hindrance or delay, and why an event that makes performance expensive rather than impossible almost never qualifies. Later sections cover the notice and mitigation conditions that quietly forfeit otherwise valid claims, the common law fallbacks of impracticability under Restatement section 261 and UCC section 2-615, frustration of purpose, and the foreseeability and assumption-of-risk limits that defeat most invocations of all three. A section on the pandemic-era case law separates what those decisions actually settled from what commentators claimed, and the article closes with what a drafter should do differently now.

Force Majeure After the Pandemic: What Actually Excuses Performance

Commercial > Contract Risk Allocation | Published 12 March 2025 - Updated 19 May 2026 | UpLaw - uplaw.us

In brief. Force majeure is not a doctrine of American contract law. It is a clause, construed narrowly, and it excuses only what its own words excuse. The pandemic produced thousands of decisions and settled remarkably little, because the outcomes turned on drafting rather than on any emerging rule — which is precisely the lesson. The party that loses a force majeure fight usually lost it at the drafting table, years before the event.

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