United States: Force Majeure

This country-specific Q&A provides an overview of Force Majeure laws and regulations applicable in United States.

  1. Is there a legal definition of force majeure in your jurisdiction?

  2. If there is not, give a brief overview of this concept.

  3. Does force majeure allow a party to suspend its obligations? If yes, for how long?

  4. Does force majeure allow a party to totally or partially avoid liability for failure or delay in performing its obligations?

  5. Does force majeure give a party the potential right to terminate the contract?

  6. Is the concept of force majeure enshrined in legislation?

  7. Would the courts be willing to imply force majeure terms into contracts?

  8. How do courts approach the exercise of interpretation in relation to force majeure clauses?

  9. What types of events are generally recognized by courts of your jurisdiction as being force majeure?

  10. What types of events have been dismissed by courts of your jurisdiction as being force majeure?

  11. Have courts recognized the COVID-19 pandemic as force majeure in your jurisdiction?

  12. Would a governmental decision or announcement that an event is a force majeure influence courts of your jurisdiction (e.g. force majeure certificates provided by the Chinese Government to Chinese companies during the covid19 pandemic)?

  13. What is the approach taken to drafting force majeure clauses in your jurisdiction?

  14. Is it common practice to include force majeure clauses in commercial contracts?

  15. If a force majeure clause is not explicitly provided for in a contract, would a party still be able to rely on force majeure?

  16. On whom would the burden of proof lie with when attempting to rely on force majeure?

  17. What would a party seeking to rely on force majeure be required to show?

  18. To what extent is a party required to mitigate its position/losses before seeking to rely on force majeure?

  19. Are there any hurdles applicable to the reliance on force majeure?

  20. Are there any applicable notice requirements which an affected party would be required to comply with before invoking force majeure?

  21. What would be the impact of force majeure on any prepayments made under contractual arrangements?

  22. What other contractual remedies are available to affected parties?

  23. What effect does force majeure have on consumer contracts? When can a producer or retailer effectively rely on this concept?

  24. Does force majeure provide adequate protection for consumers?

  25. What type of insurance policy could cover force majeure events in your jurisdiction?

  26. Are there any plans for reform in your jurisdiction, in terms of enacting new legislation or amending existing legislation (both for the short-term and long-term), to assist parties with force majeure, given the recent COVID-19 pandemic?