Force Majeure Clauses Explained

A force majeure clause is a contract provision excusing a party's performance following a defined extraordinary event beyond that party's reasonable control, such as a natural disaster, war, or government action. Force majeure is a purely contractual creature, not an implied common law right, meaning a contract with no force majeure clause leaves the parties to separate, narrower doctrines, common law impossibility and impracticability, or UCC § 2-615 for a goods contract, rather than no protection at all. 

Where a force majeure clause lists specific events followed by a general catch-all phrase, courts interpret the catch-all narrowly under the ejusdem generis canon, limiting it to events of the same kind as those specifically enumerated, a rule the New York Court of Appeals established in Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900 (1987). This discussion covers force majeure without a clause, the ejusdem generis canon and its COVID-era application, what "prevents" performance actually requires, and the notice condition precedent many parties overlook. Anyone reading a contract who needs to understand what a specific force majeure clause actually covers, and drafters checking whether a clause's catch-all language would reach an event not specifically listed, both rely on this framework.

What Is a Force Majeure Clause?

A force majeure clause is a contract provision under which the parties agree in advance that a defined category of extraordinary event will excuse or suspend one or both parties' performance obligations. General contract law does not imply this protection automatically, and a party's ability to invoke force majeure depends entirely on whether the underlying agreement actually contains this specific provision.

Three things a force majeure clause is not.

1. Not an implied common law right. The clause exists only where the contract itself creates it, and a party cannot invoke force majeure protection in a contract that never included the provision.
2. Not automatic relief for mere increased cost or inconvenience. Courts require the triggering event to actually prevent performance, and a party facing higher costs or greater difficulty, without genuine prevention, generally cannot invoke the clause successfully.
3. Not a synonym for impossibility or impracticability. These are separate common law and statutory doctrines applying independent of any contractual force majeure clause, available even where the contract itself never mentions force majeure at all.

Force Majeure Without a Clause: Impossibility, Impracticability, and UCC § 2-615

Common law impossibility and impracticability are doctrines applying even absent a force majeure clause, protecting a party whose performance has become genuinely impossible or impracticable due to an unforeseen event. Courts interpret both doctrines narrowly, generally requiring true impossibility or a fundamental change in the nature of performance rather than mere increased difficulty or cost.

UCC § 2-615 addresses this question specifically for a contract involving the sale of goods. Under this provision, a seller may be excused from timely delivery if performance has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made. This statutory standard operates independently of any force majeure clause the parties' agreement might separately contain.

A well-drafted force majeure clause is generally easier to invoke successfully than these background doctrines. The clause defines qualifying events in advance, giving the parties a clear, negotiated standard to apply when a disruptive event occurs, rather than requiring a party to prove genuine impossibility after the fact under a stricter common law or statutory standard never specifically tailored to the parties' own transaction.

The Ejusdem Generis Canon: Why Catch-All Language Doesn't Cover Everything

The ejusdem generis canon is the interpretive rule courts apply when a force majeure clause lists specific triggering events followed by a catch-all phrase such as "or other similar causes beyond the party's control." Under this canon, courts read the catch-all narrowly, limiting it to events of the same kind or nature as the specifically enumerated events rather than extending it to any and all disruptive circumstances. The New York Court of Appeals established this rule directly in Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900 (1987), the foundational precedent New York courts continue to apply in force majeure disputes.

Team Marketing USA Corp. v. Power Pact, LLC, 41 A.D.3d 939, 839 N.Y.S.2d 242 (3d Dep't 2007), confirmed how this canon operates in practice. The court held that when the event preventing performance is not specifically enumerated, but the clause contains an expansive catch-all phrase alongside specific listed events, the ejusdem generis precept serves as the appropriate construction guide for determining whether the unlisted event actually falls within the catch-all's intended scope.

JN Contemporary Art LLC v. Phillips Auctioneers LLC, 29 F.4th 118 (2d Cir. 2022), affirming 507 F. Supp. 3d 490 (S.D.N.Y. 2020), applied this framework directly to a COVID-19 dispute. An auction house invoked its force majeure clause to terminate an agreement covering a painting scheduled for a May 2020 sale, citing the pandemic and New York's state government shutdown orders restricting non-essential business activity. The relevant clause enumerated specific categories, including natural disaster, fire, flood, and armed conflict. The court held the COVID-19 pandemic, combined with the government shutdown orders, constituted a circumstance beyond the parties' reasonable control falling within the clause's scope, since the pandemic fit within or alongside the "natural disaster" category the clause had already specifically named, rather than relying on catch-all language standing alone to reach an entirely uncategorized event.

The practical consequence of this framework is genuinely fact-specific, and no single rule predicts every outcome. An unlisted event's coverage under a catch-all phrase depends heavily on what specific categories the clause already enumerates, meaning the identical pandemic could produce opposite outcomes under two different clauses depending entirely on the surrounding list's character. A clause enumerating only labor strikes and equipment failure, with no category resembling a natural disaster or government action, would likely support a narrower reading than the clause at issue in JN Contemporary Art.

What "Prevents" Performance Actually Means

Courts apply a narrow interpretation to the triggering event's actual effect on performance. The event must genuinely prevent performance, not merely complicate it or increase its cost, for a force majeure clause to excuse the affected party's obligations. A party invoking force majeure over pure economic hardship, such as a supplier facing higher raw material costs without any actual inability to deliver the goods, generally fails to establish a valid claim absent specific contract language addressing rising costs directly as a qualifying event.

The Notice Requirement: A Condition Precedent Many Parties Miss

Most force majeure clauses require the invoking party to provide timely written notice to the other party as a condition precedent to claiming the clause's protection. This notice commonly must describe the qualifying event, its impact on performance, and the expected duration of the resulting delay.

A party that experiences a genuine qualifying event but fails to provide proper, timely notice risks losing the right to invoke force majeure entirely, regardless of whether the underlying event actually occurred exactly as the clause contemplates. Courts treat this notice requirement as a real procedural condition rather than a mere formality, meaning a party sitting on a legitimate force majeure claim without promptly notifying the counterparty can forfeit the protection through delay alone.

Common Misunderstandings About Force Majeure Clauses

Common misunderstandings about force majeure clauses fall into five categories, and each creates a distinct risk for a party relying on an incorrect assumption.

1. Assuming force majeure applies automatically without a clause in the contract when the protection exists only where the parties' agreement specifically creates it.
2. Assuming any unlisted but genuinely disruptive event falls within a catch-all phrase, when courts apply the ejusdem generis canon to limit that phrase to events of the same kind as those specifically enumerated.
3. Assuming increased cost alone triggers the clause, when courts require the event to genuinely prevent performance rather than merely make it more expensive.
4. Assuming notice is a mere formality rather than a condition precedent, when failing to provide timely notice can forfeit the right to invoke force majeure regardless of the underlying event's legitimacy.
5. Assuming a pandemic automatically qualifies regardless of what the clause's other enumerated events actually list, when JN Contemporary Art turned specifically on the clause's existing "natural disaster" category rather than on the pandemic's severity alone.

Force Majeure Clauses: Complete Reference Table

Conclusion

A force majeure clause protects only as far as its own list of events reaches, since courts read a clause's catch-all phrase narrowly under the ejusdem generis canon, limiting "or other similar causes" to events resembling those the clause already names rather than any disruptive circumstance imaginable. That's why the same pandemic can produce opposite outcomes under two different contracts: JN Contemporary Art's clause covered COVID-19 specifically because it already listed "natural disaster" as a qualifying category, and a clause without a comparable category would likely fail under the identical facts. Beyond the enumerated list, the triggering event has to genuinely prevent performance rather than just raise its cost, and most clauses require timely written notice as a strict condition precedent, meaning a party sitting on a legitimate claim can forfeit the protection through delay alone. Whether it's a force majeure clause or any other provision shaping what you're actually agreeing to, an employment agreement review catches these gaps before you sign.