Force Majeure Still Turns on Words

Key Legal Questions

• Does the triggering event fall inside the contract's defined force-majeure language?
• Did the event actually prevent performance rather than increase cost or inconvenience?
• Did the invoking party attempt reasonable mitigation and comply with notice requirements?

Practical Implications

Commercial parties should assume that courts will read force-majeure clauses narrowly and examine contemporaneous correspondence in detail. Clause drafting that defines events, notice timing, and mitigation expectations with precision tends to reduce litigation uncertainty.

Practical Steps

• Audit force-majeure language across active agreements and map it to operational notice procedures.
• Preserve mitigation evidence, including substitute vendor sourcing and partial performance proposals.
• Document any timeline showing when performance became impossible and what alternatives were attempted.

Key Terms

• Force majeure: Clause allocating performance risk for defined extraordinary events.
• Prevention standard: Requirement that the event actually prevented performance, not merely increased cost.
• Notice provision: Contract rule governing when and how force-majeure notice must be delivered.