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Force Majeure Clauses Are Taking Center Stage In Uncertain Times
"Force majeure" is the contract provision that describes events the parties agree are reasonably unforeseeable, unavoidable and outside of either party's control. Events triggering force majeure may include things like acts of God, political unrest, natural disasters and labor disruptions. A force majeure event allows a party to get away with failing to perform without liability to the other party.
Force majeure, previously dismissed as inconsequential boilerplate language, was thrust into the limelight in 2020. For many transactional attorneys, COVID-19 was the Ctrl+F heard around the world. Event cancellations, government mandates and other virus-related disruptions sent counsel digging through their contracts to make sure words like "pandemic, epidemic and public health emergency" were explicitly included in their force majeure clauses.
In 2023, force majeure is lurking in the shadows of the Hollywood strikes, offering struggling studios a potential lifeline out of debt. But the best attorneys and the strongest contracts are proactive, rather than reactive. Thus, consider the following drafting tips to strengthen your force majeure language now, in the calm before the next storm.
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