Commercial contracts often contain a clause that most parties hope never becomes relevant: the force majeure provision, which can excuse a party from performance when circumstances beyond their control make it impossible or impracticable to fulfill their obligations. When unprecedented disruption affects markets across the globe, businesses and their legal counsel face a fundamental question — does this event qualify as a force majeure under the specific language of each contract at issue, and what are the consequences of invoking or not invoking that clause?
Mandelbaum Barrett PC’s corporate law attorneys advise New Jersey and New York businesses on contract interpretation, dispute prevention, and the full range of issues that arise when force majeure and related provisions come into play. Whether a business is evaluating a potential force majeure claim, responding to one from a counterparty, or structuring new contracts to account for disruption risk, the firm’s attorneys bring practical experience to these questions.
What Force Majeure Clauses Actually Say
The analysis of whether a force majeure clause applies in any given situation begins and ends with the specific language of the clause in the contract at issue. There is no universal force majeure standard — courts interpret these clauses narrowly, based on their precise wording, and the difference between “pandemic,” “government action,” “acts of God,” and other commonly used formulations can determine the outcome of a coverage dispute. Clauses that enumerate specific triggering events may not cover circumstances that are not listed, even if those circumstances are equally disruptive to the events that are named.
Beyond the trigger question, force majeure clauses typically impose requirements on the party seeking to invoke them: notice requirements, mitigation obligations, and sometimes limitations on the duration of any excuse from performance. A party that fails to comply with these procedural requirements may lose the protection of the clause even if the underlying event would otherwise qualify. Contract holders evaluating a potential force majeure claim should review not just the trigger language but all procedural requirements in the relevant provision.
When Courts Address Force Majeure and Related Defenses
Widespread commercial disruption generates substantial litigation over force majeure, frustration of purpose, and impossibility doctrines, and the resulting case law provides useful guidance for businesses evaluating their own contractual positions. Courts have generally required that the force majeure event be the direct and proximate cause of the failure to perform — not simply a background condition that makes performance more difficult or less profitable. Businesses arguing that a force majeure event made performance impossible bear the burden of demonstrating that impossibility clearly, which is a higher bar than demonstrating that performance became more expensive or commercially unattractive.
New Jersey contract law recognizes both force majeure clauses, interpreted per their specific terms, and the common law doctrines of impossibility and frustration of purpose, which can excuse performance in limited circumstances even when no force majeure clause is present. These doctrines are narrowly applied, and businesses considering reliance on them should have a clear picture of the evidentiary threshold courts require before concluding that a defense is available.
According to Cornell Law School’s Legal Information Institute, force majeure clauses are strictly interpreted based on their specific language, and courts have consistently required that the triggering event be beyond the reasonable control of the party invoking the clause. LII provides a comprehensive overview of how force majeure doctrine has developed in American contract law.
Contact Mandelbaum Barrett PC for Contract and Force Majeure Guidance
If your business is navigating a contract dispute, evaluating a force majeure claim, or wants to ensure new contracts provide appropriate protections against future disruption, the corporate law team at Mandelbaum Barrett PC can help.
Reach out through our contact page to speak with our attorneys. We are here to help New Jersey and New York businesses protect their contractual rights and resolve disputes efficiently.