Drafting a Fair Force Majeure Provision In the Wake of COVID-19

The term force majeure literally refers to a "superior force" — one that is "neither anticipated nor controlled." New Jersey Dept. of Envtl. Prot. v. Bayshore Reg'l Sewerage Auth., 340 N.J. Super. 166, 168 n.1 (App. Div. 2001). A force majeure clause provides a means by which contracting parties contemplate in advance certain uncontrollable events or effects that will render performance impracticable and conditions a party's obligation to perform upon the non-occurrence of such enumerated events. Thus, in drafting this common contractual term, at least some degree of anticipation is required.

While most commercial leases contain force majeure clauses, they are not often the subject of intense negotiations. Force majeure is typically defined to include acts beyond a party's reasonable control: inclement weather, strikes and labor shortages, governmental states of emergency, fire, flood or other casualty to name a few. Some clauses permit only the landlord to invoke an event of force majeure to excuse performance; others apply to both landlord and tenant and may be invoked to excuse performance of obligations other than the payment of rent. These are generally considered to be short-term events.