Triggering events and the ejusdem generis trap
List the events you care about - war, terrorism, civil unrest, epidemics and pandemics, government action, sanctions, strikes, utility failure, cyber-attack, and natural disasters - and add a catch-all for the unforeseen. But a bare catch-all after a specific list is read down by the ejusdem generis rule. In Sonat Offshore SA v Amerada Hess Development Ltd [1988] 1 Lloyd's Rep 145, other cause beyond reasonable control, following a list of catastrophic events, did not cover an economic downturn - nothing listed was connected to economic conditions.
The fix is express: add whether similar or dissimilar to any of the foregoing after the catch-all, so the general words are not confined to the genus of the list.
Exclude economic hardship expressly
Price rises, currency moves, and market shifts are never force majeure - they are matters for a separate hardship clause. Say so in the force majeure clause to avoid argument: state that a force majeure event does not include changes in market conditions, currency fluctuations, increased costs, or anything that merely makes performance more expensive or less profitable.
This keeps force majeure (performance prevented) and hardship (performance merely onerous) cleanly separated, which is how English law treats them.
Notice - which can be a condition precedent
Specify the timing, form, content, and consequences of notice. This matters because a notice requirement can be a condition precedent: in Bremer Handelsgesellschaft mbH v Vanden-Avenne Izegem PVBA [1978] 2 Lloyd's Rep 109, failure to comply with such a requirement barred reliance on the clause. Decide deliberately whether non-compliance should be fatal or merely limit relief.
A balanced approach is to require prompt notice (with a description, the obligations affected, mitigation steps, and an estimated duration) but to provide that late notice does not bar reliance entirely - only that the party is not excused for the period before notice was given. Premature notice is also a risk: in Fibula Air Travel Srl v Just-Us Air Srl [2022] EWHC 731 (Comm), invoking force majeure before the relevant restrictions had taken effect (and before the clause's minimum duration was met) was premature and ineffective.
Mitigation, suspension, and a longstop
Include an express mitigation duty - the affected party to use reasonable endeavours to mitigate and resume performance - and, after MUR Shipping, make clear that this does not require accepting non-contractual performance or disproportionate expenditure. Provide that obligations are suspended for the duration of the event and that time for performance is extended accordingly.
Crucially, add a longstop: if the event continues beyond a set period (the ICC 2020 clause uses 120 days), either party may terminate on notice, with the consequences spelled out. Without an exit, obligations can be suspended indefinitely, leaving the parties in limbo.
Common drafting mistakes
A few failures recur. Using force majeure without defining it can be void for uncertainty - in British Electrical and Associated Industries (Cardiff) Ltd v Patley Pressings Ltd [1953] 1 WLR 280, a clause saying the usual force majeure clauses shall apply was held void. Failing to choose between prevents, hinders, and delays leaves the threshold uncertain (and the highest may be implied). Omitting notice provisions invites disputes; omitting a termination mechanism traps the parties; and letting economic hardship creep into the clause confuses two separate regimes.
The ICC Force Majeure Clause 2020 is a useful baseline - it uses a prevents-or-impedes threshold and a list of presumed events that lighten the burden of proof - but customise it for your transaction, governing law, and sector rather than adopting it blind.
Use at the desk
Practical checklist
- List your events and defeat ejusdem generis with 'whether similar or dissimilar to any of the foregoing' (Sonat Offshore [1988] 1 Lloyd's Rep 145).
- Expressly exclude economic hardship - price, currency, and cost changes are never force majeure.
- Set notice timing, content, and consequences; decide if it is a condition precedent (Bremer Handels [1978] 2 Lloyd's Rep 109) and avoid premature notice (Fibula Air Travel [2022] EWHC 731 (Comm)).
- Include a mitigation duty that does not require non-contractual performance (MUR Shipping v RTI [2024] UKSC 18).
- Add suspension and a longstop termination right (e.g. 120 days, per the ICC 2020 clause).
- Define 'force majeure' - never rely on a generic 'usual force majeure' clause (British Electrical v Patley Pressings [1953] 1 WLR 280).
This guide is informational only and is not legal advice. It does not replace advice from licensed counsel on the facts of a specific transaction.
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