Force Majeure: Allocating the Risk of the Unforeseeable in the Aftermath of COVID-19

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Not long ago, force majeure clauses were often afterthoughts in construction contracts, referring in various ways to potential, unforeseeable and uncontrollable catastrophes, each in one mind’s eye as unlikely to then happen as not. After the fact, parties attempted to shoehorn this untested defense to have it apply to a wide range of events—natural and some unnatural.  Then came 2020, and with it a new opportunity to put forward a fresh spin on the traditional “force majeure” concept as COVID-19, along with the attendant governmental shutdowns and other actions, brought havoc and uncertainty to the industry. We are only beginning to scratch the surface of the effect on the construction litigation visited on us by COVID-19-related impacts. However, the pandemic and its continuing impact has reinforced the importance of planning for the unexpected—and undefined—when negotiating construction contracts, perhaps even where there is no express force majeure clause to which to point. 

Meaning and Origins of Force Majeure

The term “force majeure” is French for “a superior force.” Black’s Law Dictionary explains that a force majeure clause “is meant to protect the parties in the event that a contract cannot be performed due to causes which are outside the control of the parties and could not be avoided by the exercise of due care.” Force majeure clauses are just one of several contractual mechanisms by which parties can allocate the risk of such events. 

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