Force Majeure: Why Commercial Contracts Need Clearer Drafting

The disruptions of recent years have exposed fundamental weaknesses in how force majeure clauses are drafted in English law commercial contracts. Unlike some civil law jurisdictions, English law does not imply a general doctrine of force majeure, meaning that parties must rely entirely on the express terms of their agreement.

Analysis of recent disputes shows that many force majeure clauses are either too vague in defining triggering events or too rigid in specifying the consequences, leaving parties in an uncertain position when unforeseen circumstances arise.

Marcus Webb, Consultant at Caldwell Advisory, observed: "Too many commercial contracts still use boilerplate force majeure clauses that were never designed for the complexity of modern supply chain disruptions. Bespoke drafting that reflects the specific risks of each transaction is essential."

Key drafting recommendations include specifying whether pandemics, government restrictions, and cyber attacks fall within the scope of force majeure; defining the notice requirements and mitigation obligations; and clarifying whether force majeure suspends or terminates contractual obligations.

The distinction between force majeure and frustration also continues to generate confusion. While frustration operates as a matter of law to discharge a contract entirely, a well-drafted force majeure clause gives parties more control over the consequences of disruption and the threshold for its invocation.