Force Majeure Clauses After a Decade of Disruption

A force majeure clause excuses or delays a party's performance when defined events beyond its control prevent it. Classic triggers include acts of God, war, civil unrest, and government action. The disruptions of recent years — pandemics, epidemics, supply-chain failures, material shortages, and labor unavailability — have pushed parties to address those categories expressly rather than hoping a generic catch-all will reach them.

The drafting matters because courts read force majeure clauses narrowly, often treating the enumerated list as the outer boundary of relief. If an event is not within the listed categories or a carefully drafted catch-all, relief may be denied even though the event was genuinely beyond the party's control. A clause written before the last decade's disruptions may not cover them.

Most force majeure clauses grant a time extension only — the affected party gets more time to perform but absorbs the added costs the event caused. Whether the contractor can also recover those costs, such as escalated material prices and extended general conditions, is a separate and heavily negotiated point. A clause that grants time but not money still leaves the contractor bearing the financial impact of an event no one controlled.

Increasingly, price-escalation clauses appear alongside force majeure to address volatile material costs directly. These provisions allow an adjustment to the contract price when the cost of key commodities — steel, copper, lumber, fuel — moves beyond a defined threshold, allocating the risk of extreme price swings rather than forcing the contractor to gamble on commodity markets when bidding.

Invoking force majeure is not automatic. The party seeking relief generally must show that the listed event actually caused the delay or non-performance — not merely that the event occurred — and that it took reasonable steps to mitigate the impact. A contractor that could have sourced materials from an alternative supplier, or resequenced the work, may find its relief reduced if it did nothing.

This causation-and-mitigation requirement is why contemporaneous documentation matters here too: records showing the event's specific impact on the project and the contractor's efforts to work around it are what convert a force majeure clause from words on a page into an enforceable excuse.

Tie the clause to prompt written notice of the force majeure event and its expected impact, with updates as the situation develops. At review, confirm the enumerated events actually cover the risks the project faces — including supply-chain and labor disruptions if those are live concerns — and decide whether the clause should grant time only or time and money. Consider a companion price-escalation provision for material-intensive work.

A force majeure clause is one of those provisions that is ignored until it is desperately needed; the time to get the list and the remedy right is at signing, not in the middle of the next disruption.

The deeper question force majeure raises is who bears the risk of extraordinary, unforeseeable cost increases — not just schedule slippage. A pure time-extension clause answers that the contractor does, which on a long, material-intensive project can be a significant uninsured exposure. Owners, for their part, resist open-ended cost relief that turns a fixed-price contract into a cost-plus one whenever markets move.

A sensible middle ground pairs a time extension for force majeure delay with a narrowly drawn price-escalation mechanism: an adjustment triggered only when named commodities move beyond a defined percentage from a baseline, with the contractor bearing ordinary fluctuations and sharing or passing through only the extraordinary swings. That allocates the risk deliberately, rather than leaving it to a fight over whether a supply-chain shock fits within the force majeure list.