The clause everybody copies and almost nobody updates
Force majeure clauses were once boilerplate that nobody read. Then March 2020 happened. Within six weeks every commercial litigator in the world was reading the exact wording of these clauses to decide whether a global pandemic was covered. About half the contracts said yes implicitly. About half said no implicitly. A small number said yes explicitly, because their drafter had remembered SARS and MERS and updated the template. They got paid out cleanly.
This guide walks through what force majeure actually does, what the common law backstops are when your clause does not cover an event, and a modern checklist for cross-border contractor agreements where the “event” might be a visa denial or a 36-hour internet outage in Tier 2 India rather than a hurricane.
1. What force majeure is and is not
Force majeure is a contractual concept. It allocates risk for events neither party can control. The clause in your contract typically:
- Lists triggering events
- Sets out the consequences: suspension, extension, allocation, or termination
- Requires notice from the affected party
- Imposes a duty to mitigate
- Sometimes provides for termination after a sustained period
What force majeure is not: a common-law doctrine that operates automatically. US courts will not infer force majeure protection unless the contract gives it. If your contract has no clause, you fall back to the related but narrower doctrines of impossibility, impracticability, and frustration of purpose.
2. The common-law backstops when there is no clause
US law gives you three doctrines as a backstop. Each has a higher bar than a well-drafted force majeure clause.
Restatement (Second) of Contracts Section 261: Impracticability
Section 261 of the Restatement (Second) discharges a party’s duty to perform when:
- An event occurs after the contract was made
- The non-occurrence of the event was a “basic assumption” on which the contract was made
- The event makes performance impracticable
- The party invoking the doctrine is not at fault
Courts apply this narrowly. A pandemic that closes an office is not enough on its own. The question is whether the specific performance the contract requires has become impracticable, not whether business has become harder.
Restatement Section 262: Death or Incapacity
Section 262 covers the more specific case of an individual whose performance is essential to the contract dying or becoming incapacitated. Applies to personal services, including contractor agreements where a named individual is the performer.
UCC 2-615: Excuse by Failure of Presupposed Conditions
For contracts for the sale of goods, UCC 2-615 excuses delay or non-delivery when performance has been made impracticable by an event whose non-occurrence was a basic assumption. The UCC version is more party-friendly than the Restatement because it explicitly allows partial allocation of available output among customers.
For contractor agreements covering services, UCC Article 2 does not apply (services are not goods). The Restatement Second is the relevant doctrine.
Why the backstops are not enough
In every reported COVID-era case where a party relied on common-law impracticability without a force majeure clause, the bar was high and outcomes were mixed. Courts asked:
- Was COVID truly unforeseeable in a market that already understood pandemic risk after SARS and H1N1?
- Did performance become genuinely impossible or just more expensive?
- Did the party take reasonable steps to mitigate?
A written force majeure clause sidesteps most of this analysis by explicitly listing pandemic and government action as triggering events. The clause does the work the doctrine refuses to do automatically.
3. What COVID taught contract lawyers
A useful summary of US court outcomes during the COVID period:
- Clauses that listed “epidemic”, “pandemic”, or “quarantine” were typically held to cover COVID
- Clauses that listed “acts of government” were often held to cover government-mandated shutdowns
- Clauses with a generic catch-all like “or other event beyond the parties’ reasonable control” were interpreted strictly by ejusdem generis. If the listed examples were natural disasters, the catch-all did not cover a pandemic
- Clauses with no relevant trigger were rarely stretched to cover COVID
The McGuireWoods analysis of COVID and force majeure (Contract Implications Amid COVID-19 Concerns) is a good summary of the doctrinal landscape that emerged.
The practical lesson for 2026 templates is straightforward. If you want pandemics covered, name them. If you want cyber-attacks covered, name them. The catch-all is a backstop, not a primary tool.
4. The events your 2026 force majeure clause should expressly cover
A modern force majeure clause for cross-border contractor agreements should expressly enumerate:
Natural events
- Earthquakes, floods, hurricanes, fires, tsunamis, volcanic activity
- Severe weather including monsoon flooding in South Asia
Health emergencies
- Pandemic, epidemic, quarantine, public-health emergency
- Government-ordered isolation or movement restriction
Government action
- Acts of any government, including sanctions, embargoes, export controls
- Required licences or approvals being denied or revoked
- Visa denial or revocation affecting a named contractor
War and civil unrest
- War, declared or undeclared
- Civil disorder, riots, terrorism
- Cyber-war and state-sponsored cyber-attacks
Critical infrastructure failures
- Sustained power outage, internet outage, or telecommunications failure in the contractor’s region
- Sustained failure of a third-party platform on which the work depends (e.g. cloud provider outage)
Supply chain and labour
- Strikes, labour disputes (other than of the affected party’s own employees)
- Material shortages caused by enumerated events
Cyber events
- Ransomware attack
- Distributed denial of service
- Data breach requiring containment
The list should be expansive but not infinite. Anything not on the list will be tested against the catch-all, and the ejusdem generis canon will cut narrowly. Better to enumerate than rely on the catch-all.
5. Contractor-specific events worth naming
Cross-border contractor agreements have a few risks that conventional B2B force majeure templates miss.
Visa denial
A US company hires a contractor in Manila with a clause requiring on-site work in the US one week per quarter. The US embassy denies a B-1 visa. Is this force majeure? Without naming it, probably not. With it named, yes.
Internet outage
Tier-2 cities in many emerging markets have routine 6 to 36 hour internet outages. A modern contractor agreement should treat a sustained outage of more than a defined threshold (commonly 48 or 72 hours) as a force majeure trigger.
Currency control or banking failure
If the contractor’s home country imposes capital controls that prevent receiving USD, or if local banks fail to process incoming payment, the contractor has not breached. A modern clause covers this.
Health emergency of the named individual
For solo contractor agreements where a specific person performs, serious illness or family emergency should be expressly covered. This is closer to Restatement 262 but the clause makes it explicit.
6. The mechanics: notice, mitigation, and partial suspension
A force majeure clause without notice and mitigation duties is a one-way option for the affected party to walk away. A modern clause should require:
Prompt notice
Typically 5 to 10 business days after the affected party knows or should have known of the event. The notice should state the event, its expected duration, the affected obligations, and the steps the party is taking to mitigate.
Duty to mitigate
The affected party must take commercially reasonable steps to work around or recover from the event. Continued non-performance after reasonable workarounds exist is not protected by force majeure.
Partial suspension over full discharge
For contractor relationships, partial suspension is usually the right framework. Specifically:
- Time-based obligations (deliverables, deadlines) are suspended for the duration of the event
- Payment for completed work continues
- The contractor is not in default during the event
- Either party can terminate if the event continues for more than a stated period (commonly 30 to 90 days)
This structure works for both sides. The client gets to extend deadlines. The contractor still gets paid for what is done. Neither side is on the hook for completing impossible work.
Termination right after sustained event
If the force majeure event lasts longer than a specified period, either party should be entitled to terminate without penalty. The standard window in modern contractor templates is 30 to 90 days.
Final reconciliation
When the contract terminates due to force majeure, the contract should specify what survives: payment for completed work, return of materials, IP that has already been assigned, confidentiality obligations.
7. Sample clause that works for cross-border contractor agreements
A workable modern clause for a cross-border contractor agreement reads something like:
14.1 Definition. “Force Majeure Event” means any event beyond the reasonable control of the affected party, including: (a) act of God, including earthquake, flood, hurricane, fire, or severe weather (b) pandemic, epidemic, quarantine, or public-health emergency, including any government-ordered movement restriction or isolation (c) act of any government, including sanctions, embargo, export control, visa denial or revocation, or denial of any required licence or approval (d) war, terrorism, civil unrest, or cyber-attack including ransomware or state-sponsored intrusion (e) sustained outage of power, internet, or telecommunications in the affected party’s region for more than 48 consecutive hours (f) sustained failure of a third-party platform on which the work materially depends, and (g) currency control or banking failure preventing payment.
14.2 Effect. The affected party shall be excused from performance to the extent and for the duration of the Force Majeure Event, provided the affected party (a) gives written notice within 10 business days of becoming aware of the event, identifying the event, its expected duration, and the obligations affected, and (b) takes commercially reasonable steps to mitigate and resume performance.
14.3 Payment for Completed Work. Notwithstanding suspension of performance, the Client shall pay the Contractor for all work completed before the Force Majeure Event in accordance with the Agreement.
14.4 Termination. Either party may terminate this Agreement for convenience upon 5 business days’ written notice if the Force Majeure Event continues for more than 60 consecutive days, without liability for further performance but subject to all rights accrued prior to termination.
This clause names the major event categories explicitly, sets clear notice and mitigation requirements, treats completed work as payable, and provides a termination right after 60 days. Adjust the duration thresholds and the termination window to fit your engagement.
8. What not to do
A few patterns that show up in old templates and that you should remove from your 2026 version.
Open-ended catch-all only. “Any event beyond the parties’ reasonable control” without enumerated examples is the weakest form. Add the examples even if you keep the catch-all.
No notice requirement. Without a notice clause, the affected party can claim force majeure retroactively. Notice is what makes the clause administrable.
Full discharge without partial suspension. A clause that discharges the entire contract on any force majeure event is a hair-trigger that benefits whichever party would rather walk away. Partial suspension is more aligned with how contractor relationships actually work.
Payment frozen during force majeure. If the contractor has done the work and you owe them, the force majeure clause should not freeze that obligation. It should freeze future obligations only.
No carve-out for the affected party’s existing breach. A party already in breach should not be able to invoke force majeure to discharge the breach. The clause should make this explicit.
9. International alignment
A force majeure clause governed by US law applies to a contractor in any jurisdiction. But other legal systems have their own force-majeure-like doctrines. Two worth knowing about:
French law: force majeure as codified. Article 1218 of the French Civil Code defines force majeure as an event beyond the debtor’s control, unforeseeable, and whose effects cannot be avoided by appropriate measures. French law actually requires this. US law does not without a clause.
Indian law: Section 56 of the Indian Contract Act. Section 56 provides that a contract becomes void when its performance becomes impossible by reason of an event that the parties could not prevent. This is the Indian equivalent of impossibility doctrine. Indian courts apply it narrowly, much like US impracticability.
For most cross-border contractor agreements, your governing-law clause picks US (or English) law, and your force majeure clause governs the operational mechanics. The contractor’s home-country doctrines come into play only if the contract ends up in their courts.
For the governing law selection that determines which doctrine applies, see our governing law and jurisdiction guide. For the dispute resolution clause that pairs with force majeure, see our arbitration vs litigation guide.
10. The short checklist
Before you ship your contractor template:
- Does the clause list pandemic and epidemic by name?
- Does it list government action including visa denial?
- Does it list cyber-attack including ransomware?
- Does it require notice within 10 business days?
- Does it impose a duty to mitigate?
- Does it preserve payment for completed work?
- Does it provide a termination right after 30 to 90 days?
- Does it survive confidentiality and IP after termination?
If you can tick all eight, your clause is in good shape for 2026. If you tick fewer than five, your clause is a pre-2020 template that needs an update before the next disruption.
A short note on Omnivoo’s Contract Management
Omnivoo’s Contract Management product ships with a force majeure clause built to this 2026 standard by default. Every contractor template enumerates pandemic, cyber, visa denial, and infrastructure outage triggers. It requires 10-business-day notice, preserves payment for completed work, and provides a 60-day termination window. The defaults are configurable per contract.
If you would like us to review your existing contractor template against this checklist, talk to our team and we will produce a redline of your current clause within a week.