TRW & Co · Commercial contracts
Force Majeure Clauses under English Law: How They Work
A force majeure clause excuses or suspends performance when an event beyond a party's control prevents or delays it. English law has no default force majeure doctrine, so protection depends entirely on the wording: the events covered, the impact required, causation, mitigation and notice. Without a clause, the only fallback is frustration, which is narrow and ends the contract altogether.
Key pointMost force majeure claims fail on process rather than on the event itself: a missed or informal notice, or an inability to prove the event (not some other problem) caused the failure to perform. And the Supreme Court has confirmed that reasonable endeavours to overcome an event do not require accepting non-contractual performance.
At a glance
No default doctrine
English law only excuses performance for supervening events if the contract says so; without a clause, a party must rely on the narrow doctrine of frustration.
Wording decides outcomes
Courts apply the clause's listed events, trigger words such as prevented, hindered or delayed, and exclusions; economic hardship and price rises rarely qualify.
Causation required
The Court of Appeal in Classic Maritime applied a but-for test: a party that would not have performed anyway cannot rely on the event.
Notice is critical
Where notice is a condition precedent, a late, informal or incomplete notice can defeat relief even for a genuine force majeure event.
Frustration as fallback
Frustration ends the contract automatically and is rarely made out; the 1943 Act deals with recovery of money paid and benefits conferred.
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The short answer: what a force majeure clause does in English law
A force majeure clause is a contract term that excuses or suspends a party's performance when an event beyond its control prevents or delays it. English law has no general doctrine of force majeure, so a party is protected only if its contract contains such a clause and the event, the impact and the notice all fit the wording. If there is no clause, or it does not apply, the only fallback is the narrow doctrine of frustration.
That makes drafting decisive. English courts treat these clauses as ordinary contract terms: they read the words, apply them to the facts, and place the burden of proof on the party claiming relief. They do not fill gaps with a general sense of fairness, and they will not rewrite a bargain because performance has become more expensive or less profitable.
In practice, the questions are always the same. Is the event listed or covered by the general wording? Did it actually cause the failure to perform? Were the notice requirements met? Did the affected party try to mitigate? And what happens next: suspension, extension of time, or a right to terminate?
Why English law has no default force majeure doctrine
"Force majeure" is a civil law concept. In France and many other civil law systems, a statutory or codified doctrine excuses performance when certain conditions are met. English law takes a different approach. It starts from the principle that contractual obligations are absolute unless the contract says otherwise, so any relief for supervening events has to be bargained for.
This is why the label alone does little. A clause that simply says "neither party shall be liable for force majeure" without defining the term may be held void for uncertainty, or construed by reference to the surrounding context. Well-drafted contracts therefore define a force majeure event, list examples, and set out the consequences in detail.
Because the clause is purely contractual, two contracts covering the same event can produce opposite results. A supplier whose clause lists "epidemic" and "governmental action" may be excused, while a competitor whose clause covers only "acts of God, war and natural disaster" may not. Reviewing the clause in each live contract is the first step whenever a disruptive event occurs. Our commercial contracts team regularly carries out that portfolio review for clients.
How English courts construe a force majeure clause
The event: listed examples and catch-all wording
Most clauses combine a list of specific events (war, terrorism, natural disaster, epidemic, fire, strikes, changes in law) with general words such as "or any other event beyond the reasonable control of the affected party". Courts read the general words in light of the list, so they may be confined to events of a similar kind. If a particular risk matters, name it.
Two exclusions are standard and generally upheld: events that the affected party could have avoided by taking reasonable precautions, and mere economic hardship. A rise in costs, a fall in demand or a currency movement will rarely qualify unless the clause expressly says so.
The impact: prevented, hindered or delayed
The trigger language matters as much as the event. "Prevented" sets a high bar: performance must be legally or physically impossible, not merely harder. "Hindered" or "delayed" is easier to satisfy. A clause using all three words gives the affected party more room, which is why suppliers press for broad trigger wording and customers resist it.
Causation: the event must be the real cause
The party relying on the clause must usually show that the event caused its failure to perform. In Classic Maritime v Limbungan Makmur [2019] EWCA Civ 1102, the Court of Appeal held that a charterer could not rely on an exceptions clause because it would not have performed anyway, for reasons unrelated to the dam collapse it relied on. Unless the wording says otherwise, a "but for" test is likely to apply.
Reasonable endeavours to overcome the event
Many clauses excuse performance only if the event could not be avoided or overcome by reasonable endeavours. In RTI Ltd v MUR Shipping BV [2024] UKSC 18, the Supreme Court held that such a proviso did not require the affected party to accept an offer of non-contractual performance (payment in a different currency from the one the contract specified). The decision gives welcome certainty: reasonable endeavours do not oblige a party to give up its contractual rights, unless the clause expressly says they do.
Read the whole clause as a sequence of conditions: qualifying event, required impact, causation, mitigation and notice. Relief usually fails at one specific step, most often notice or causation, rather than on whether the event itself was "force majeure".
Notice requirements: the step that most often goes wrong
Almost every clause of this kind requires the affected party to notify the other side. Notice provisions typically specify a deadline (often a short number of days from the event or from when the party became aware of it), the form (in writing, to a named address, sometimes by a specified method), and the content (the nature of the event, its expected duration and the obligations affected).
Whether a missed or defective notice defeats the claim depends on the wording. Where the clause makes notice a condition precedent, expressly or by clear implication, a late or incomplete notice can be fatal. Where it does not, failure to notify may only give the other party a claim for damages. Courts look at whether the clause states a precise time and says that relief is conditional on compliance.
A good notice is factual and specific. It identifies the clause relied on, describes the event and how it affects performance, sets out the mitigation steps being taken and commits to updates. It also reserves rights. Notices should go out promptly, even while facts are still emerging, with a follow-up once the impact is clearer.
What to do when an event strikes: a step-by-step process
- Identify the affected contracts. List every contract whose performance is at risk, including upstream supply and downstream customer contracts, so you can see where exposure and relief are mismatched.
- Read each clause in full. Check the definition of the event, the trigger words, any carve-outs (for example, payment obligations are often excluded), the mitigation duty and the governing law.
- Diarise and serve notices. Calculate the notice deadline in each contract, follow the prescribed method and address, and keep proof of service.
- Gather evidence of causation. Keep records showing how the event prevented or delayed performance: government orders, supplier notices, port or logistics data, internal production records.
- Document mitigation. Record the alternatives considered and the steps taken to overcome the event, such as alternative suppliers, routes or methods.
- Manage the counterparty. Provide the updates the clause requires and consider whether a negotiated variation is better than relying on strict rights.
- Review termination rights. Many clauses allow either party to terminate if the event continues beyond a specified period. Check the period and any notice needed before exercising it.
Frustration: the fallback when there is no force majeure clause
If the contract has no relevant force majeure clause, a party may argue that the contract has been frustrated. Frustration applies where a supervening event, not caused by either party, makes performance impossible, illegal or radically different from what was contemplated. The classic statement is that it is not this that was promised.
The threshold is very high. In Canary Wharf (BP4) T1 Ltd v European Medicines Agency [2019] EWHC 335 (Ch), the High Court held that Brexit did not frustrate the agency's long lease of its London headquarters. Increased cost, delay or inconvenience is not enough, and frustration is unavailable where the contract already allocates the risk of the event, including through an express relief clause.
Frustration also works differently. It is automatic and total: the contract ends at the moment of the frustrating event and both parties are released from future performance. There is no suspension option. The financial consequences are dealt with by the Law Reform (Frustrated Contracts) Act 1943, which allows recovery of money paid before the event (subject to the court's discretion to allow the payee to keep some or all of it for expenses incurred) and of a just sum for any valuable benefit conferred.
| Issue | Force majeure clause | Frustration |
|---|---|---|
| Source | The contract | Common law, with the 1943 Act for consequences |
| Threshold | Whatever the clause says (prevented, hindered or delayed) | Performance impossible, illegal or radically different |
| Effect | Suspension, extension of time, relief from liability, sometimes termination | Contract ends automatically for both parties |
| Notice | Usually required, sometimes as a condition precedent | None required |
| Foreseeable events | Covered if the clause covers them | Generally unavailable if the risk was foreseen and allocated |
| Money already paid | Depends on the clause | Recoverable under the 1943 Act, subject to court discretion |
Drafting a force majeure clause that works
A robust clause answers six questions clearly. Suppliers and customers will negotiate different answers, but ambiguity helps neither side.
- Definition: a list of events relevant to the sector (for example, cyber attacks, sanctions, epidemics, grid failure, port closures) plus catch-all wording, with clear exclusions such as economic hardship and events affecting only the affected party's own subcontractors unless they are themselves hit by force majeure.
- Trigger: whether the event must prevent, hinder or delay performance, and whether partial relief is available.
- Excluded obligations: most commercial contracts exclude payment obligations from relief, so that a customer cannot withhold sums due for performance already received.
- Notice and mitigation: clear deadlines, content requirements and an obligation to use reasonable endeavours to mitigate and resume performance.
- Consequences: suspension of obligations, extension of time, relief from liquidated damages, and how costs are shared during the suspension.
- Termination: a long-stop period after which either party may terminate, and what happens to payments, deliverables and accrued rights on termination.
The clause also interacts with the rest of the contract. Check its relationship with the limitation of liability clause, change-in-law and price adjustment provisions, business continuity obligations and any material adverse change clause. In supply chains, try to align relief "back to back", so that a supplier excused by its own supplier is excused vis-à-vis its customer too.
An illustrative scenario
This scenario is illustrative only; the parties are generic and the facts invented.
A UK retailer buys garments from an overseas manufacturer under a supply agreement governed by English law. A major flood closes the manufacturer's factory for several weeks. The force majeure clause covers "flood, fire and other natural disasters", requires written notice within a short period, and allows either party to terminate if the event continues beyond a set number of days.
The manufacturer emails the retailer's buyer on the day of the flood, but the contract requires notice to the retailer's legal department at a named address. The retailer argues the notice was invalid, cancels outstanding orders and claims damages for the cost of sourcing elsewhere.
The outcome would turn on the notice wording. If notice was a clear condition precedent, the manufacturer may lose relief despite a genuine natural disaster. If not, the retailer's remedy for defective notice may be limited to any loss the defect caused. The lesson for both sides is simple: serve notice exactly as the contract requires, and check before cancelling orders that the contract really gives that right.
Risks and common mistakes
Assuming English law will excuse performance anyway
Businesses familiar with civil law systems sometimes assume a statutory force majeure defence exists. Under English law, it does not. Without a clause that covers the event, the only argument is frustration, which rarely succeeds and ends the whole contract rather than suspending it. Each contract governed by English law should be checked for a clause that fits the risks the business actually faces, and contracts under foreign law should be checked against that law's default rules.
Relying on force majeure for higher costs
A surge in energy, freight or raw material prices does not usually prevent performance; it makes it less profitable. Courts have consistently refused to treat market changes as force majeure unless the clause expressly covers them. If cost volatility is the real concern, the answer is a price adjustment, indexation or hardship clause negotiated at the outset, not a stretched reading of the relief wording once costs have risen.
Late, informal or incomplete notices
Emails to operational contacts, verbal updates and vague letters can all fail to meet a contractual notice requirement. Where notice is a condition precedent, the consequence may be loss of relief entirely. Diarise deadlines on day one, send notices to the specified addresses in the specified form, and include the content the clause requires. If in doubt, serve a protective notice early and supplement it later.
Treating the event as the end of the duty to perform
Most clauses require the affected party to mitigate and to resume performance as soon as practicable. A party that stops performing entirely, without exploring alternatives, risks losing relief or facing a claim that the event was not the real cause of non-performance. Keep a record of the alternatives considered and why they were or were not reasonable.
Terminating too early
A customer that terminates on the basis that a force majeure event has occurred, without a contractual right to do so, may itself be in repudiatory breach. Termination rights in force majeure clauses usually apply only after the event has continued for a defined period, and often require notice. Before terminating, check the period, the notice and whether accrued payments survive. Our guide to breach of contract remedies explains the consequences of wrongful termination.
Cross-border contracts: governing law and Bangladesh
Whether a force majeure clause works also depends on the governing law. Under English law, the clause is the whole story. Under many civil law systems, statutory force majeure or hardship doctrines may apply alongside or instead of the clause. Contracts with counterparties in the EU, the Gulf or China should state the governing law expressly and define force majeure exhaustively if the parties want English-style certainty.
Bangladesh's Contract Act 1872, modelled on the Indian Contract Act, contains a statutory rule that a contract becomes void when performance becomes impossible or unlawful after it is made. Supply contracts between UK buyers and Bangladeshi manufacturers often choose English law, which means the clause, not the statute, will usually decide the outcome. Our guide to English law contracts with Bangladeshi counterparties and our Bangladesh supply chain team cover these issues in more depth.
Disputes about force majeure in international contracts often end up in arbitration. If your contract provides for London-seated arbitration, see our international arbitration practice.
What to do next: a checklist
- Map the contracts that would be affected by a significant disruption, and check whether each has a force majeure clause.
- Check that the events listed match the risks your business actually faces, including cyber, sanctions and supply chain events.
- Note the trigger wording (prevented, hindered or delayed) and whether payment obligations are excluded.
- Diarise notice requirements and prepare a template notice for each key contract.
- Align upstream and downstream force majeure relief so you are not liable to customers for events that excuse your suppliers.
- Consider price adjustment or hardship provisions for cost volatility, which force majeure will not cover.
- If an event has occurred, take advice before terminating or withholding performance.
If you need help reviewing a force majeure clause, serving or responding to a notice, or resolving a contract dispute, contact our London office at info@trw.co.
Frequently asked questions
01Is force majeure implied into contracts under English law?
No. Unlike many civil law systems, English law has no general doctrine of force majeure. A party is excused from performing because of a supervening event only if its contract contains a clause that covers that event and the conditions in the clause are met. Where there is no clause, the party can only argue that the contract has been frustrated, which requires performance to have become impossible, illegal or radically different from what was agreed. That is a high threshold that is rarely met.
02Does a pandemic count as force majeure?
It depends on the wording of the clause. If the clause lists epidemics, pandemics, disease or government action, a pandemic and the restrictions that follow are likely to be covered, provided they actually prevented or delayed performance as the clause requires. If the clause relies only on general wording, it is a question of interpretation. Many contracts drafted since 2020 now name pandemics and public health measures expressly, often with tailored consequences.
03Can I rely on force majeure if costs have increased?
Usually not. English courts distinguish between events that prevent performance and those that make it more expensive or less profitable. Increases in raw material, energy or shipping costs, or currency movements, rarely qualify unless the clause expressly covers them. If cost volatility is a real risk, the contract should include a price adjustment, indexation or hardship mechanism. Force majeure is not designed to rebalance a bargain that has become unprofitable.
04What happens if I miss the force majeure notice deadline?
The consequences depend on the wording. If the clause makes timely notice a condition precedent to relief, either expressly or by clear implication, missing the deadline can mean losing protection altogether. If it does not, the failure may only entitle the other party to damages for any loss caused by the late notice. Serve notice as soon as possible, in the form and to the address the contract specifies, and take advice if a deadline has already passed.
05What is the difference between force majeure and frustration?
A force majeure clause is a contractual mechanism: its scope and effects depend on the wording, and it usually suspends performance, extends time or gives a right to terminate after a period. Frustration is a common law doctrine that applies only where performance becomes impossible, illegal or radically different. It ends the contract automatically for both parties. Frustration is generally unavailable where the contract already allocates the risk of the event, for example through a force majeure clause.
06Does reasonable endeavours mean I must accept a different way of performing?
Not unless the contract says so. In RTI Ltd v MUR Shipping BV, the Supreme Court held that a reasonable endeavours proviso in a force majeure clause did not require a party to accept the other side's offer to pay in a different currency from the one the contract specified. A party does not have to give up its contractual rights to overcome a force majeure event, although parties can agree otherwise in clear terms.
Sources and official materials
- RTI Ltd v MUR Shipping BV [2024] UKSC 18 — Supreme Court on reasonable endeavours and non-contractual performance
- Classic Maritime Inc v Limbungan Makmur Sdn Bhd [2019] EWCA Civ 1102 — Court of Appeal on causation in exceptions clauses
- Canary Wharf (BP4) T1 Ltd v European Medicines Agency [2019] EWHC 335 (Ch) — High Court on the high threshold for frustration
- Law Reform (Frustrated Contracts) Act 1943 — Financial consequences when a contract is frustrated
General information only, current as at 21 October 2026. It is not legal advice and does not create a solicitor–client relationship. It reflects the law of England and Wales unless stated otherwise; Scotland and Northern Ireland have separate legal systems, and the law changes frequently. Check current official sources and take advice on the facts of your matter.