Tips For Creating Strong Force Majeure Provisions

Force majeure provisions in contracts haven't garnered much attention over the years. But the pandemic changed all that. In the last few years alone, there have been hundreds of cases across myriad industries asking courts to determine whether a pandemic qualifies as a force majeure event.

What these cases have shown is that a litigant's success (or lack thereof) in enforcing a force majeure provision often turns on specificity. And including a robust force majeure provision goes a long way in appropriately allocating risk between the parties for unforeseeable events.

Force majeure provisions should not be an afterthought. Instead, businesses should review their current force majeure provisions and determine whether they contain sufficient specificity to excuse nonperformance.