force majeure

force majeure, in commercial and international law, an extraordinary and unforeseen event whose occurrence would free the parties in an agreement from certain obligations to one another. Force majeure incidents typically include wars, natural disasters (e.g., earthquakes), terrorist attacks, epidemics, and civil unrest, such as riots.

The concept of force majeure originated in French civil law as part of the Napoleonic Code and has been incorporated into the common law and civil law of many countries. A force majeure clause is commonly written into commercial contracts and international treaties.

Force majeure and commercial law

A force majeure clause of a contract is used to protect the parties from certain types of liability or losses. Force majeure does not encompass events that are predictable, preventable, or controllable, or that result from the negligence or malfeasance of one or more parties. Natural events that would trigger a force majeure clause are often referred to as “acts of God.”

The force majeure clause of a contract will typically specify what types of events would relieve the parties of their contractual obligations. Such events typically must be:

• Extremely unusual. An example is the COVID-19 pandemic. Such sweeping global infections have occurred only rarely in modern history.

• Unforeseen or unanticipated by one or more parties and out of all parties’ reasonable control. The spread of COVID-19 was more rapid than anyone anticipated. World governments’ responses to the pandemic were beyond the control of business enterprises.

• Such that the obligations agreed to by one or more parties of the contract become impractical, illegal, or impossible. A pandemic may shut down a supplier’s business, stopping all of its deliveries to clients.

When a force majeure clause is triggered, any party affected by the event must notify the other party or parties to the contract. The affected parties will describe the start date and circumstances of the incident and cite the specific section in the contract that allows them to declare a force majeure incident. They must then estimate how long the force majeure may be in effect and provide the other party or parties with regular updates.

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However, even under force majeure conditions, the parties may not always be completely relieved of their obligations. For example, if a sudden flood forced a supplier to miss a scheduled delivery, the company could invoke a force majeure clause. But when the floodwaters receded, the supplier would be expected to deliver the promised goods. Likewise, if a partial delivery of goods was made before the force majeure incident, the receiver would be obligated to pay the supplier for those goods.

Force majeure and international law

Contracts and treaties between countries also generally include force majeure clauses. Several international legal organizations—such as the International Chamber of Commerce, the United Nations Convention on Contracts for the International Sale of Goods, and the Vienna Convention on the Law of Treaties—have offered similar definitions of the types of events that would trigger a force majeure clause. As in common and civil law, the event must be unforeseen and uncontrollable and make it impossible for one or more parties to fulfill their contractual or treaty obligations.

One prominent example of a failed invocation of force majeure under international law occurred in February 2023, when a high-altitude balloon that had been launched from China was seen in the air above the northern United States. The balloon’s presence within the borders of the United States ostensibly violated both U.S. and international law. The Chinese government asserted that the balloon was a civilian meteorological airship that had been driven off course by errant winds, which made its entry into U.S. territory a “force majeure accident.” The United States disputed this claim, pointing out that China had knowledge of the prevailing winds and therefore should have known where the balloon was likely to go. Also, the balloon changed course several times while over U.S. territory in a manner that indicated that it was under some type of remote control. Finally, China did nothing to avoid or remove the problem or to warn the United States. Accordingly, the United States claimed that the balloon was engaged in espionage and shot it down.

The military forces of most modern countries may also claim a force majeure defense in certain cases to avoid provoking international conflicts. For example, a U.S. military aircraft damaged by a midair collision or by a lightning strike could declare a “force majeure accident” and request an emergency landing in a country such as China. The granting of permission under this defense could help to prevent increased tension between the two countries.