Key Points To Consider When Drafting Force Majeure Clauses

In the first article from the force majeure series we reviewed the definition (or lack thereof) of force majeure and how courts determine whether a force majeure event has occurred. As discussed in the US there is no standard criteria to prove force majeure. Instead, courts will look to a contract's language to determine if a party can rely on the force majeure clause to suspend performance.

In light of this, here is a list of key provisions to consider when addressing force majeure in a contract:

• Include a definition of force majeure, as there is no specific meaning for this term in common law. Don't simply state that a party can suspend performance due to an event of "force majeure". The contract should define this event.