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.
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