A force majeure clause typically releases the affected party from its obligation to perform, or defers performance, where three conditions are met together: the event is beyond its control, it was not foreseeable at the time of contracting, and it cannot be averted. Whether this leads to a temporary deferral or a full release depends on the wording of the contract and on how long the impediment lasts. The party invoking the clause must also give notice without delay, otherwise protection often falls away retroactively.
In brief:
Force majeure clauses apply only to events beyond control that are unforeseeable and unavoidable, and they require notice without delay.
The legal meaning differs in international work: CISG governs the sale of goods; the ICC and UNIDROIT clauses are flexible templates for cross-border contracts.
A good clause includes clear definitions, typical events, notice duties and deadlines for mitigation and termination.
In disputes, immediate documentation is decisive for enforcing a force majeure claim later.
The distinction from hardship is essential: force majeure excuses in cases of impossibility; hardship governs renegotiation where performance has become unreasonably onerous.
Concept, legal basis and distinction from hardship
Force majeure describes an event that comes from outside, was not foreseeable at the time of contracting, and could not be prevented by reasonable means. Internationally, Art. 79 CISG governs this case for contracts of sale: the exemption from liability applies where non-performance is due to an impediment beyond the party's control that was not foreseeable, and the affected party must inform the other side without delay.
Nationally the picture differs. Some legal systems treat force majeure as a separate category; others deal with comparable cases through impossibility of performance or through the collapse of the contractual basis, as a comparative overview shows. For this reason a cross-border contract needs its own, clearly drafted clause rather than a reference to unspecified national law.
The distinction from hardship matters. Both concepts concern disrupted performance, but they lead to different legal consequences:
- Force majeure releases a party from performance or defers it where performance becomes impossible.
- Hardship instead gives rise to a claim to renegotiate the contract where performance remains possible but has become economically unreasonable.
- Mixing the two concepts in one clause creates room for interpretation that neither party can control.
International templates: ICC 2020, UNIDROIT and CISG compared
Anyone drafting a new clause should not start from scratch. Three reference works have become established in international contract practice, and each covers a different angle.
The ICC model clauses from 2020 offer two variants. The Long Form contains a detailed definition, a list of presumed events, and detailed notice rules, while the Short Form reflects the same mechanism more compactly. Both versions name typical events such as war, pandemics, state intervention, natural disasters and labour disputes, and both regulate from what duration termination becomes possible.
The UNIDROIT Principles, Chapter 7, expressly distinguish in Art. 7.1.7 between excuse through force majeure and renegotiation under hardship. For temporary impediments the provision envisages a time-limited excuse rather than an automatic full release.
Art. 79 CISG, in turn, remains tailored to international contracts for the sale of goods and applies where no deviating national law has been agreed.
- ICC templates work as a drafting basis for almost any cross-border contract.
- UNIDROIT supplies the conceptual framework where parties come from different legal systems.
- CISG applies automatically where there is an international sale of goods and the parties have not agreed otherwise.
Pro tip: take the ICC Long Form as a starting text and selectively strike out those events that are not relevant to your supply chain, instead of adopting the full list unchanged.
Concrete drafting recommendations
A clause that holds up in a real case needs more than a list of catastrophes. It needs structure.
- General clause: an abstract definition that takes up the three tests of beyond control, unforeseeability and unavoidability.
- Example list: a non-exhaustive list of typical events such as war, pandemic, natural disaster, state orders or strike, adapted to your industry.
- Notice duty: a deadline for notice, often between five and ten working days after becoming aware of the event, as drafting guides for such clauses recommend.
- Mitigation duty: an obligation to take and document reasonable steps to limit the damage.
- Consequences: a clear statement from when a deferral turns into a right to terminate, often after 60 to 120 days of continued disruption.
These time ranges serve as guidance and should always be adjusted before contract conclusion to the specific supply chain, contract value and applicable law.
A caveat is in order: a clause copied unchanged from a template on the internet rarely fits the specific situation. The ICC itself points out that its templates are intended as a starting point and must be adjusted to the national legal environment and the specific supply chain.
Pro tip: set out the burden of proof explicitly: which party has to prove that the event occurred, and with which documents?
Practical steps where a party invokes force majeure
If the real case arrives, the order of steps often matters more than the legal finesse of the clause itself.
The notice to the other side should contain four points:
- a description of the event and its starting time,
- the concrete impact on the party's own ability to perform,
- an estimate of the likely duration,
- the mitigation measures already taken.
In parallel, documentation begins: official orders, transport or delivery evidence, internal records of the decisions taken, and all communication with suppliers and customers. These records often decide later whether an invocation of force majeure stands up.
Chamber-of-commerce guidance stresses that not every crisis automatically amounts to force majeure, and advises to check the contract wording in each case before a party invokes the clause. What matters is concrete impossibility or significant obstruction of performance, not a general hardship.
Missed deadlines often lead to the loss of the excuse, even where the event itself was undisputed. As soon as supply chains run across several countries or different legal systems are involved, outside legal advice pays off at this point, especially where termination or a damages claim is on the table.
Practice view from Sobiera Legal: typical mistakes and advisory focus
In our client work we see the same weak points time and again: clauses that mix force majeure and hardship, notice deadlines that sit in the contract but are ignored in the real case, and event lists copied at signing instead of being tailored to the party's own supply chain. Disputes less often arise from the event itself than from a late or incomplete notice.
A mandate pays off especially where several parties from different countries sit in one supply chain, where the choice of law in the contract remains unclear, or where negotiations have to be conducted in several languages. We handle such mandates directly in several languages, without the detour via external interpreters, which makes the difference in time-critical force majeure cases.
— Bitblade
Offer: contract review and clause adaptation by Sobiera Legal
We review existing clauses for gaps and adapt them to your applicable law and your supply chain, from the drafting of the general clause to the notice deadlines. For companies with an ongoing advisory need, for example in trade with Eastern European partners, we offer a retainer for SMEs active in Eastern European business from CHF 500 per month. An initial conversation to assess your contract situation is available from CHF 150 per hour. For ongoing international contract work, you will find our services in commercial and contract law at a glance, directly and without going through an interpreter.
This article contains general information and does not replace advice from a qualified lawyer. Consult a qualified legal professional regarding your personal situation before acting on the basis of this content.
FAQ
Is a severability clause permitted?
Yes, a severability clause is permitted and customary in most legal systems, but it does not replace a force majeure provision. It only ensures that the remainder of the contract remains in force if an individual clause is held invalid.
What is force majeure?
Force majeure describes an event beyond the control of a contracting party which was not foreseeable at the time of contracting and could not be averted. Depending on the contract and the duration, it leads to a deferral of performance or a full release from the obligation.
Is a strike force majeure?
A strike is included in many model clauses, for example the ICC templates, among the events typically listed. Whether it actually applies in a given case depends on whether it was unforeseeable and unavoidable for the affected party.
What is force majeure in Austria?
Austrian law has no standalone statutory definition of force majeure as a fixed concept; comparable cases are dealt with through the general rules on impossibility of performance. For that reason the contractual clause takes on particular weight here, as it fills the gap in the statute.
What is the difference between force majeure and hardship?
Force majeure releases a party from performance where performance becomes impossible, while hardship under UNIDROIT Art. 7.1.7 gives rise to a claim to renegotiate where performance remains possible but has become significantly more onerous economically. A contract clause should keep the two cases cleanly separated.