What follows is our general observations and opinions. It is not legal advice, and it is not a definitive statement of California law. Every situation depends on its own facts.
Force majeure clauses used to be the provision nobody read. They were tested hard, and the lesson was not that they do not work — it is that most of them were drafted as decoration. Our reading of how these clauses are approached in California is that they are interpreted as written: the question is whether the event and its consequences fall within the language the parties actually agreed, not whether the situation feels like the kind of thing force majeure is for.
That has two practical consequences. A clause listing floods, fires, earthquakes, war and acts of God, with no catch-all and no reference to disease, governmental order or supply chain failure, will be read as a list. And a clause that excuses performance without saying what happens next leaves the parties in a dispute about consequences even where they agree an event occurred.
Three questions decide every force majeure argument
When we are asked whether a clause helps, the analysis is nearly always the same three steps.
Is the event covered? This is a drafting question. An enumerated list is construed as a list. A general catch-all — events beyond the reasonable control of the party — does more work, but its reach depends on how it is phrased and what surrounds it.
Did the event actually prevent performance? This is where most claims fail, and it is the point we find clients least prepared for. There is generally a real difference between performance that has become impossible and performance that has become expensive or unprofitable. A clause requiring that performance be “prevented” sets a materially higher bar than one saying “prevented, hindered or delayed.” Increased cost alone rarely gets there absent express language.
Was the procedure followed? Most clauses require prompt written notice within a defined period, frequently with particulars of the event and its expected duration. Our reading is that where notice is a condition of relief, late or informal notice can forfeit the protection regardless of the merits. A party that stops performing and explains itself later is in a much weaker position than one that gave notice on day three and kept performing while the position was worked out.
What has changed in the drafting
The clauses we now see negotiated seriously look different from the pre-2020 boilerplate. The recurring additions:
- Named modern events. Epidemic, pandemic, public health emergency, governmental order or shutdown, cyber incident, and utility or grid failure, rather than relying on a catch-all to carry them.
- Foreseeability addressed expressly. Once an event is a known risk, a party may face the argument that it was foreseeable and therefore assumed. Clauses increasingly state whether a recurrence of a known event is covered, rather than leaving it to be argued.
- Supply chain drafted deliberately. Whether a supplier’s failure excuses you generally depends on the words used and whether alternative sources were reasonably available. Broad drafting here is heavily negotiated because it can shift substantial risk.
- Payment carved out. Almost universal now, and sensible: an inability to obtain revenue is generally not treated as an excuse for failing to pay money already owed.
- A mitigation obligation. An express duty to use reasonable efforts to work around the event, and to resume promptly.
- A termination right. A provision allowing either party to exit if the event continues beyond a defined period — often 30, 60 or 90 days — which prevents an indefinite suspension.
Suspension is not the same as excuse
The most useful distinction we draw for clients is between relief that pauses an obligation and relief that erases it. Most force majeure clauses suspend performance for the duration of the event and extend deadlines accordingly. Far fewer discharge the obligation altogether.
So the questions to resolve in the drafting are: does the contract term extend by the period of delay, do payment obligations continue to accrue during suspension, what happens to exclusivity and minimum purchase commitments while performance is paused, and at what point does either side get to walk away. A clause that answers none of these produces a second dispute immediately after the first is settled.
What happens when there is no clause
Where a contract is silent, the common law doctrines remain — impossibility, impracticability and frustration of purpose. We would not advise anyone to rely on them as a plan. Our reading is that the bar is high: impracticability generally requires far more than the transaction becoming unprofitable, and frustration of purpose generally requires that the whole point of the contract has been destroyed rather than diminished.
Where both a clause and the doctrines are potentially in play, a detailed clause frequently narrows what is available, on the basis that the parties addressed the allocation of risk themselves.
The Los Angeles angle
Locally the live risks are specific enough to name in a clause rather than leave to a catch-all: wildfire and the evacuation orders and air quality closures that accompany it, extended utility de-energization, seismic events, port and logistics disruption, and the permitting and inspection delays that follow any of these. For a business dependent on a physical location or on inbound goods, those are the events worth drafting for, and they are more likely to occur than most of the items on a standard list.
Practical steps if you are relying on one now
Read the clause before you act, not after. Give notice in the form and within the period the contract requires, and keep proof of delivery. Document the causal chain contemporaneously — the order, the closure, the supplier’s notice — because reconstructing it later is markedly harder. Keep performing everything you still can, since partial performance is usually better than none and suspending more than the event requires is itself a risk. And check the linked agreements, because a suspension under one contract can trigger a default under another.
How we work on these
Drafting or reviewing a force majeure clause, and advising on whether one is available in a live situation, is hourly or flat-fee work. This is not contingency work and we would not describe it as such. In our experience the review is cheap relative to the exposure, and the notice provision is where the money is won or lost.
If you are negotiating one of these, or you think you may need to rely on one, call us at (310) 556-9692.
Related reading: our contracts resource page, plus what an indemnification clause commits you to, when California courts enforce liquidated damages clauses, and which California contracts must be in writing.
These are our general observations and opinions only. They are not legal advice and not a definitive statement of California law, every situation turns on its own facts, and reading this does not create an attorney-client relationship between us.
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