Force majeure clauses: questions to ask

A force majeure clause deals with specified events outside ordinary performance expectations. Its effect depends on the wording. In England and Wales, do not assume that describing an event as exceptional automatically excuses performance or payment under a contract.

Check the listed events, any causation requirement, excluded circumstances and the obligations affected. Increased cost may be treated differently from actual inability to perform. Identify notice and mitigation duties, then consider the point at which prolonged disruption permits another response or termination.

Connect the event to the obligation it prevents

Identify the particular delivery, service or other promise affected. Then explain how the event causes the difficulty. A general disruption in the market does not establish that this supplier cannot perform this obligation. Gather transport notices, site-closure information or other evidence relevant to the actual cause rather than relying on headlines about a wider crisis.

Check whether the clause requires prevention, hindrance or delay, and whether it lists the event or uses broader wording. These distinctions can affect the assessment. Do not replace the contract's test with a general belief that the event was outside your control. Obtain advice on the specific wording and the evidence available before asserting that performance is excused.

Examine alternatives and mitigation

Identify realistic alternative routes, suppliers or methods of delivery. Record their cost, timing and practical availability. The fact that an alternative is more expensive does not by itself answer whether the clause applies; equally, a theoretical option may be unusable in the circumstances. Explain the actual assessment and the steps taken to reduce disruption.

Consider customer cooperation where access, approvals or revised sequencing could help. Keep proposals clear about whether they are temporary arrangements or changes to the contract. An operational workaround should not unintentionally create a permanent obligation or waive a disputed position. Have material variations reviewed and recorded through the appropriate process.

Follow the notice and update requirements

Check when notice must be given, what it must contain and how it must be delivered. State the event, affected obligations, expected impact and steps being taken, to the extent known. Avoid confident recovery dates unsupported by evidence. If the position changes, provide the updates required by the agreement and retain a record of them.

A late or incomplete notice can create a separate dispute about entitlement to relief. Do not assume that the other party's awareness of a general event satisfies every contractual requirement. Coordinate messages from sales, operations and legal advisers so the company does not give contradictory accounts of whether it can perform or when normal service will resume.

Review the consequences rather than assuming cancellation

The clause may suspend specified obligations, extend time or permit termination after prolonged disruption. Identify which consequence follows and when. It may not excuse payment for goods or services already supplied. Read related payment, allocation and termination provisions before treating the whole agreement as paused.

Assess any liability exclusion or restriction in context. Applicable business terms can require review under the Unfair Contract Terms Act; the presence of a force majeure heading does not validate every associated exclusion. ^[1] Keep the question of contractual relief separate from a claim that no legal responsibility can ever arise during an exceptional event.

Distinguish force majeure from frustration

Under English law, frustration is a separate doctrine with a demanding, fact-specific analysis. It should not be used as a casual alternative label when a force majeure claim is uncertain. Obtain legal advice before treating the contract as discharged or stopping performance on that basis. The commercial fact that a deal has become less profitable does not itself settle the issue.

Prepare a factual chronology and the complete agreement for that advice. Explain the original obligation, the event, available alternatives and conduct since the disruption began. A focused evidence pack allows the adviser to assess the relevant route without first reconstructing the situation from disconnected emails and public news reports.

Plan the return to ordinary performance

Agree how outstanding orders, revised dates and temporary arrangements will be handled when the disruption ends. Identify which notices or confirmations are required. Keep unresolved financial claims visible rather than assuming that service resumption settles every issue. Read Late delivery and contractual remedies for delivery-delay responses. Commercial contract review can help review the clause and proposed communications against the actual event and performance evidence.

Keep disruption records tied to individual orders

Where several orders are affected, identify the cause and proposed response for each. One shipment may be impossible to deliver while another remains available through an ordinary route. Avoid applying a blanket suspension without checking the clause and facts. The order schedule helps the parties prioritise alternatives and distinguish excused delay from unrelated performance problems.

Illustrative scenario

A supplier faces a transport interruption but can deliver through another route at a higher cost. The parties need to assess the actual clause, evidence of the interruption and available alternatives. A general statement that logistics are difficult does not answer whether the contractual conditions for relief have been met.

Preparation checklist

• Identify the event and the specific obligation affected.
• Preserve evidence of its actual effect on performance.
• Check notice, updates and mitigation requirements.
• Review payment and termination consequences during extended disruption.