English law implies no force majeure
There is no common law doctrine of force majeure in England. The phrase is borrowed from French civil law and has no inherent legal meaning here; courts will not imply force majeure protection. Without an express clause, a party's only routes are frustration (a high threshold, and automatic) or treating the other side as in breach.
And economic difficulty is not a route at all. As Thames Valley Power Ltd v Total Gas & Power Ltd [2005] EWHC 2208 (Comm) confirmed, a contract becoming uneconomic - even dramatically so - does not relieve a party on grounds of force majeure or frustration; a supplier in that position is unwilling, not unable, to perform.
The essential elements
Because the clause does all the work, it must address each element. The triggering events can be an exhaustive list (certain but rigid), a general formula such as any event beyond reasonable control (broad but uncertain), or - best - a hybrid of a list plus a catch-all. The causal threshold matters too: prevents is the highest bar (impossible), hinders is intermediate (substantially more onerous), and delays is the lowest (temporal). The clause should also set notice requirements, a mitigation duty, and the consequences (suspension, extension, and termination).
Typical listed events include acts of God, war, terrorism, civil unrest, epidemics and pandemics, government action, sanctions, strikes, failure of utilities, and natural disasters - but the list is only the start; what each word does depends on the causal and control language around it.
Causation: the but-for trap
Causal wording can carry more weight than drafters expect. In Classic Maritime Inc v Limbungan Makmur Sdn Bhd [2019] EWCA Civ 1102, phrases like resulting from and directly affect imported a but-for causation requirement: the party had to prove it would have performed but for the event. A dam collapse had occurred, but the evidence showed the charterer would not have shipped anyway, so force majeure failed and substantial damages were awarded.
So check whether the clause requires but-for causation. A party that could not have performed regardless of the event may find the clause gives it nothing.
Beyond reasonable control - and mitigation
Most clauses turn on the event being beyond the affected party's reasonable control, and that language carries an implied duty to mitigate. In Channel Island Ferries Ltd v Sealink UK Ltd [1988] 1 Lloyd's Rep 323, the Court of Appeal held that a party relying on beyond-control wording must have taken all reasonable steps to avoid or mitigate the event - and force majeure was denied where the party had not tried to find alternative vessels.
So the claiming party must show three things: the event was beyond its control, it could not have prevented it, and it took reasonable steps to mitigate. The burden of proof is entirely on the party invoking the clause.
MUR Shipping: reasonable endeavours has limits
The leading recent authority is MUR Shipping BV v RTI Ltd [2024] UKSC 18. After US sanctions disrupted US-dollar payments, the charterer offered to pay in euros and cover the conversion cost; the shipowner invoked force majeure. The Supreme Court held unanimously that a reasonable-endeavours proviso does not require a party to accept non-contractual performance - the object is to maintain the agreed performance, not substitute a different one, even where the substitute would cause no detriment.
The practical effect is that you can insist on your contractual entitlement despite a workaround: a party entitled to payment in one currency need not accept another, and a party entitled to delivery at one place need not accept another.
Use at the desk
Practical checklist
- Include an express force majeure clause - English law implies none (Thames Valley Power v Total Gas [2005] EWHC 2208 (Comm)).
- Choose the causal threshold deliberately - prevents (highest), hinders, or delays (lowest).
- Check whether the causal wording imports but-for causation (Classic Maritime v Limbungan [2019] EWCA Civ 1102).
- Expect 'beyond reasonable control' to require all reasonable steps to avoid and mitigate (Channel Island Ferries v Sealink [1988] 1 Lloyd's Rep 323).
- Remember the burden of proving force majeure is on the party invoking it.
- Do not assume reasonable endeavours forces acceptance of non-contractual performance (MUR Shipping v RTI [2024] UKSC 18).
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.
Product demo
Use the guide for context. Use Veqtor for the Word documents.
Watch Claude compare negotiation drafts and create a separate Word document with proposed tracked changes.
See Veqtor work with Word redlines