How to Negotiate A Force Majeure Clause
Negotiate a force majeure clause by making the list of qualifying events specific rather than vague, requiring prompt notice, and defining what happens if the event drags on — suspension, and eventually a right to terminate. A one-sided or open-ended clause can let a counterparty walk away from an inconvenient deal, not just a genuinely impossible one.
This guide describes general, widely-used commercial negotiation practice — it is informational, not legal advice on any specific contract. The right position for your deal depends on your actual leverage, relationship, and governing law. Have your actual clause reviewed by a lawyer before relying on any of this.
What each side typically wants
Wants a wide list of qualifying events and a low bar for invoking the clause, to preserve flexibility if performance becomes difficult.
Wants a narrow, specific list of events, prompt notice obligations, and a cap on how long non-performance can be excused before termination rights kick in.
Red flags worth pushing back on
- A catch-all like "any event beyond a party's reasonable control" with no illustrative list, letting almost anything qualify
- No notice requirement, so the other party only finds out after the fact
- No time limit on how long performance can be suspended before either side can exit
- One-sided — available to only one party, not both
- Includes events that are foreseeable or within the invoking party's control to mitigate (e.g. routine supplier issues)
How to negotiate it
- Replace vague catch-alls with a specific, defined list of qualifying events (natural disaster, war, government order, pandemic, etc.)
- Require notice within a set number of days of the event, with an obligation to mitigate
- Add a maximum suspension period (e.g. 60-90 days) after which either party can terminate without penalty
- Make the clause mutual — available to both parties on the same terms
- Exclude events reasonably foreseeable at signing, or within the invoking party's reasonable control
Sample fallback language
"...if the Force Majeure Event continues for more than [60] days, either party may terminate this Agreement on written notice without further liability, other than for obligations accrued before the event."
Illustrative starting language only — have it reviewed and adapted to your actual deal and governing law before using it.
Frequently asked questions
Does force majeure automatically cover pandemics or economic downturns?
Not automatically — coverage depends entirely on whether the clause's specific wording includes that category of event. A generic clause silent on pandemics may not cover one; this is exactly why a defined list matters more than a vague catch-all.
Is force majeure the same as a "material adverse change" clause?
No — force majeure excuses performance during an external event; a MAC clause typically allows exit from a deal before closing if conditions materially worsen. They serve different purposes and are negotiated differently.
Don't negotiate this alone.
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