Why copy-pasting force majeure clauses is risky

Force majeure clauses are often treated as boilerplate. The problem is that force majeure doesn’t mean the same thing everywhere. A clause from a French, German or Sharia contract may seem suitable, but might not work as intended in an English law agreement.

The fundamental mismatch

In many civil law jurisdictions, force majeure is a doctrine that operates by law whether or not the contract mentions it. In France, for example, article 1218 of the French Civil Code (as reformed in 2016) provides a statutory definition and a framework of consequences that apply automatically. Parties can therefore afford to be less precise, because the doctrine fills the gaps.

English law takes the opposite approach. There’s no implied doctrine of force majeure. If the contract doesn’t contain an express clause, the concept simply doesn’t exist between the parties. Everything turns on the words chosen and agreed. This means that a clause designed to supplement or modify a statutory backdrop will not function properly when that backdrop is removed entirely.

Common pitfalls in inserted clauses

Practitioners reviewing force majeure provisions borrowed from other legal traditions should watch for the following:

• ‘Act of God’ language: in several jurisdictions, this phrase is understood broadly as a synonym for natural disaster. Under English law, however, ‘act of God’ carries a narrower, tort-based meaning rooted in cases such as Nichols v Marsland [1876], referring to events caused exclusively by natural forces without human intervention. Using it loosely in a contractual force majeure list may inadvertently narrow the clause’s scope
• Assumed duties to renegotiate: in many civil law jurisdictions, good faith obligations or statutory doctrines support that assumption. English law recognises no such general obligation. A clause that contemplates renegotiation without spelling out the mechanics and the consequences of a failure to agree is likely to be unenforceable
• References to statutory definitions or codes: difficulties also arise where force majeure clauses refer to statutory definitions, codes or legal concepts with no equivalent under English law. Such references may appear sophisticated but once removed from their original legal context, they can be ineffective or, worse, positively misleading.

The ICC clauses: useful, but not a complete answer

The ICC Force Majeure and Hardship Clauses (2020 edition) are frequently adopted in international contracts as a neutral reference point. They can be a helpful starting position, provided they are aligned with the governing law and the commercial context in which they are being used.

A practical checklist for reviewing imported force majeure clauses

• Identify the governing law of the original precedent and consider what that legal system implies or provides by statute
• Remove any language that depends on statutory or codified doctrines with no English law equivalent
• Replace vague or jurisdiction‑specific terms, such as ‘act of God’, with clearly defined triggering events
• Set out the practical operation of the clause, including notice requirements, mitigation obligations and the consequences of prolonged force majeure
• Check that any renegotiation or good faith provisions are expressed with sufficient certainty to be enforceable under English law.

Recent periods of widespread disruption have highlighted these differences clearly. During Covid‑19, many parties discovered that force majeure clauses they assumed would offer protection didn’t operate as expected under English law. Against a backdrop of ongoing political and economic disruption, the same risks continue to arise where clauses are borrowed without careful review.

Force majeure clauses are not interchangeable. What protects a party under one legal system may offer no protection at all under another, making careful review of borrowed wording a worthwhile exercise long before the clause is tested.