In March 2020, every business owner in America did the same thing at roughly the same time. They pulled out their contracts, searched for the words "force majeure," and tried to figure out whether the COVID-19 pandemic meant they could stop performing. Most of them were disappointed by what they found.
The force majeure clause that was supposed to save them did not. Some contracts did not have one. Others had one but did not list pandemics. Still others listed pandemics but required notice within 48 hours -- a deadline that passed while everyone was still figuring out what "shelter in place" meant. Understanding force majeure -- the meaning of force majeure, what would trigger the clause, and what falls outside its reach -- became urgent overnight.
Force majeure is one of the most misunderstood provisions in contract law. People assume it is a universal escape hatch. It is not. It is a narrowly drafted exception that courts construe strictly, and if your clause does not explicitly cover the event you are facing, you are probably still on the hook for your obligations hereunder arising from the agreement.
The meaning of force majeure is "superior force" -- it comes from French. A force majeure clause is a contract provision that relieves one or both parties from performing their obligations when an unforeseen event or extraordinary circumstance beyond the control of the affected party makes performance impossible, impracticable, or illegal.
The key concept: the event must be beyond the reasonable control of the affected party. You cannot invoke a force majeure clause because you made a bad decision, ran out of money, or failed to plan for a foreseeable risk. The clause exists for genuinely unforeseen events -- uncontrollable circumstances beyond what any party could have anticipated -- that make it impossible to do what you promised to do.
Without a force majeure clause, parties are generally stuck with common law doctrines like impossibility or impracticability -- which set an even higher bar. The entire purpose of including a force majeure clause in your contract is to define, in advance, exactly which events will excuse performance and under what conditions. Depending on the nature of the contract, the clause may excuse performance entirely or merely suspend obligations due until the event passes.
This is a contract provision, not a legal doctrine. That distinction matters for legal interpretation. Courts do not imply force majeure into contracts that lack the clause. If the terms of the contract do not include one, you do not get to claim it. Neither party shall be liable for failure to perform only if the force majeure clause says so.
Most force majeure clauses include a list of qualifying events that would trigger the clause. The standard list has not changed much in decades. Here is what you will typically find in a force majeure clause template:
Natural disaster. Earthquakes, hurricanes, floods, tornadoes, volcanic eruptions. The original force majeure events -- like natural disasters that no amount of planning can prevent. A natural disaster that physically destroys your facilities or makes delivery impossible is the clearest example of a force majeure event.
Act of God. Overlaps heavily with natural disasters, but the legal concept of an act of God specifically refers to events caused entirely by natural forces with no human contribution. Lightning strikes. Tsunamis. These are unforeseen circumstances so extraordinary that no reasonable person could have anticipated or prevented them.
War and terrorism. Armed conflict, military action, insurrection, terrorism, civil unrest. These are consistently recognized as force majeure events across virtually every jurisdiction. Performance affected by such force majeure events is almost universally excused.
Pandemic. After the COVID-19 pandemic, nearly every force majeure clause now lists pandemics and epidemics explicitly. Before 2020, many did not. The absence of "pandemic" from pre-COVID contracts was the single biggest reason businesses could not invoke force majeure during lockdowns. Due to force majeure provisions being interpreted strictly, courts held that if you did not list it, you did not mean it.
Government action. Embargoes, sanctions, regulatory changes, lockdown orders, permit denials. Government actions that make performance illegal or impossible are strong force majeure events -- but only if the specific type of government action is listed in the clause or captured by sufficiently broad language in the terms of this agreement.
Labor disputes. Strikes, lockouts, work stoppages. These may qualify as force majeure in many contracts, though some courts distinguish between strikes at your own company (which you arguably could have prevented) and industry-wide labor actions (which you could not).
This is where businesses get into trouble. Force majeure is not a catch-all excuse for contracts that become inconvenient or unprofitable. Courts have consistently rejected the following as force majeure events:
Economic downturns. A recession does not qualify as force majeure. Neither does inflation, market volatility, or a decline in your customer base. Your contract becoming a bad deal is not a force majeure event. It is just a bad deal.
Price increases. Raw materials cost more. Shipping rates doubled. Your margins disappeared. None of this excuses performance. Force majeure requires impossibility or impracticability -- not merely increased expense. If you can still perform but it costs more than expected, courts will hold you to the deal.
Supply chain disruptions (usually). This one surprises people. Supply chain problems generally do not qualify as force majeure unless they are caused by force majeure events themselves -- like natural disasters or acts of war upstream. Your supplier being late is your problem, not a force majeure event. However, if your supplier's factory was destroyed by a natural disaster, that underlying event may qualify.
Poor planning. You did not order enough inventory. You underestimated project timelines. You failed to secure necessary permits before the deadline. None of this is force majeure. It is negligence, and courts will not bail you out.
Foreseeable difficulties. If the risk was foreseeable at the time of contracting, it almost certainly does not qualify as force majeure. Seasonal weather in a region known for hurricanes. Regulatory changes that were publicly proposed before you signed. Force majeure covers unforeseen events, not inconvenient ones.
Here is where things get interesting -- and where most force majeure clauses are dangerously outdated.
Standard force majeure language was written for a world of physical goods, physical facilities, and physical delivery. Earthquakes and wars. But the modern economy runs on cloud infrastructure, third-party APIs, and increasingly, AI models that can degrade or disappear without warning. The question of what constitutes a force majeure event in digital commerce has no settled answer.
Consider the following scenarios:
Cloud outages. Your SaaS product runs on AWS. AWS goes down for 12 hours, taking your platform and every customer deployment with it. Is this a force majeure event? Maybe. Most standard force majeure clauses do not mention cloud infrastructure failures. And courts are split on whether a cloud outage is truly circumstances beyond your control when you chose that provider and could have built redundancy.
API provider failures. Your product integrates with a third-party API -- payment processing, identity verification, data enrichment. That API provider goes dark. Your product cannot function. The API provider's failure is not your fault, but your customer does not have a contract with the API provider. They have a contract with you. A delay or failure caused by force majeure at a subcontractor level may not excuse your own obligations under this agreement.
AI model degradation. You built your product on a specific AI model. The model provider changes the model, degrades its performance, or discontinues it entirely. Your product no longer works as promised. Is a change in AI model availability a force majeure event? No court has ruled on this yet, but under most existing clauses, the answer is almost certainly no.
Cyberattacks. A ransomware attack takes down your systems. A DDoS attack makes your service unavailable for days. Cyberattacks are increasingly common, but they are not listed in most standard force majeure clauses. Courts in several jurisdictions have declined to treat cyberattacks as force majeure events under generic catch-all language.
The gap is real. Tech companies are operating under force majeure clauses drafted for manufacturing disruptions, not digital ones. If your contract does not specifically address these scenarios, you are exposed.
If you are a SaaS company, AI company, or any business that depends on digital infrastructure, your force majeure clause needs to be updated. No template pulled from the internet will cover these risks adequately. Here is how to draft it properly:
List cyber events explicitly. Cyberattacks, ransomware, DDoS attacks, data breaches caused by third parties, coordinated hacking campaigns. If it is not in the list, courts will not add it for you. A well-drafted force majeure clause in contracts should enumerate every category of digital threat.
Include cloud infrastructure failures. Name the category: failures of third-party cloud hosting providers, data center outages, loss of connectivity due to internet backbone failures. Be specific about what would trigger the clause in a cloud-dependent architecture.
Address AI model availability. If your product depends on a third-party AI model, include language covering discontinuation, material degradation, or modification of third-party AI models or machine learning services. This is new territory, and the only way to protect yourself is to draft it into the clause.
Cover third-party API dependencies. Failure or discontinuation of critical third-party services, APIs, or platforms upon which the service depends. Name the dependency category, even if you do not name specific vendors. Obligations under this agreement should be excusable when critical infrastructure you do not control fails.
Use both a specific list and a catch-all. List every event you can think of, then add a catch-all phrase like "and any other unforeseen events beyond the reasonable control of the affected party." The specific list provides certainty. The catch-all provides a safety net -- though courts give catch-all language far less weight than specifically enumerated events.
The rule is simple: if it is not in the list, it probably does not qualify as force majeure. Draft accordingly.
Almost every force majeure clause includes a notice requirement. The affected party must notify the other party promptly in writing when a force majeure event occurs. Miss this requirement and you may waive the entire defense.
Typical requirements include:
These are not optional formalities. They are conditions precedent to invoking the clause. Courts have denied force majeure defenses solely because the party failed to provide timely notice. Document everything, notify the other party immediately, and follow the exact procedure your contract specifies.
Force majeure does not mean you get to sit on your hands.
Even when a force majeure event excuses performance, the affected party has an ongoing obligation to mitigate the impact. Due to the force majeure event, your obligations may be suspended -- but you must take reasonable steps to minimize the effect and resume performance as soon as practicable.
What does mitigation look like in practice? If your primary cloud provider goes down, you should be activating your disaster recovery plan, not waiting indefinitely for the provider to come back online. If a government order prevents in-person delivery, you should be exploring alternative delivery methods. If a cyberattack disrupts your systems, you should be working to restore operations -- not treating the attack as a permanent vacation from your contractual obligations.
Failure to mitigate can defeat an otherwise valid force majeure defense. Courts will ask: what did you do after the event occurred? If the answer is "nothing," neither party shall be excused. You are going to have a bad time.
If you are doing business in Connecticut or New York -- and if you are reading this blog, there is a good chance you are -- you need to understand how courts in these jurisdictions approach the legal interpretation of force majeure clauses.
The short version: narrowly.
Connecticut follows the majority approach. Force majeure clauses are strictly construed. Courts will not expand the clause beyond its listed events. If your clause lists natural disasters, war, and government action but does not list pandemics, a pandemic does not trigger the clause. Connecticut courts also require that the force majeure event be the proximate cause of the failure to perform -- not merely a contributing factor.
New York is even more restrictive. New York courts have consistently held that force majeure clauses should be narrowly interpreted and that only events specifically listed in the clause can qualify as force majeure. The catch-all phrase "and other events beyond the parties' control" has been given limited reach in New York -- courts interpret it to cover only events of the same kind and nature as the specifically listed events (the legal principle of ejusdem generis). The legal interpretation in New York makes it critical to be exhaustive in your drafting.
In both jurisdictions, the burden of proof falls on the party invoking force majeure. You must demonstrate that the specific event is covered by the clause, that the event was beyond your control, that the event actually prevented performance (not just made it harder or more expensive), and that you took reasonable steps to mitigate. No party shall be liable for non-performance only if all of these elements are satisfied.
This is not a defense you invoke casually. It requires documentation, timely notice, active mitigation, and precise alignment between the event and the contract language.
When building or reviewing a force majeure clause template for technology agreements, keep these principles in mind:
Pull out your contracts -- your SaaS agreements, your vendor contracts, your customer terms of service. Find the force majeure clause. Read it. Understand it.
If it does not list cyber events, cloud failures, AI model disruptions, or third-party platform dependencies, it is out of date. If it does not have a clear notice requirement, it is incomplete. If it does not address mitigation obligations, it leaves you exposed. If it uses a generic template from a decade ago, it was not built for the unforeseen circumstances that modern tech companies actually face.
Force majeure is one of those provisions that does not matter until it is the only thing that matters. When a force majeure event hits -- a natural disaster, a pandemic, a catastrophic cyberattack -- the language in that clause becomes the difference between an excused delay and a breach of contract lawsuit. Learn more about what to expect from a contract dispute.
Do not wait for the next crisis to find out your clause does not cover it.
If you need help reviewing or redrafting force majeure provisions in your technology agreements, contact Turley Law for a consultation. We work with SaaS companies, AI startups, and tech businesses across Connecticut, New York, and Massachusetts.
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