Force Majeure Clauses: Lessons from the Post-Pandemic Era

Three years of COVID-era opinions have reshaped how New York courts read force majeure. The clauses you copied from a template in 2018 are not doing what you think they're doing. Specifically, the language most contracts inherited — drafted in an era when "force majeure" meant hurricanes, strikes, and the occasional fire — has been stress-tested against pandemics, supply-chain collapses, and emergency governmental orders. The lessons are unflattering.

If you're drafting or reviewing commercial contracts in 2026, here's what has actually changed, and what you should be doing about it.

The pre-2020 baseline

Pre-pandemic, force majeure clauses were boilerplate. Most contracts I reviewed used some variant of "acts of God, war, terrorism, riot, strike, lockout, government action, or other circumstances beyond the reasonable control of the affected party." Courts construed these clauses narrowly: the event had to be unforeseen, beyond reasonable control, and the direct cause of non-performance.

The narrow construction matters now because it sets the table for everything that came after. Force majeure has never been a get-out-of-jail-free card. It is, and remains, an affirmative defense that the party invoking it has to prove with documentary evidence.

What "epidemic" actually means now

Pre-2020, "epidemic" appeared in maybe one in twenty commercial force majeure clauses. Now it's in most. But courts have read it narrowly: the epidemic must cause the non-performance, not merely coincide with it.

The most-cited line of opinions on this point comes out of the First Department. In a series of 2021-2022 commercial-lease decisions, the court rejected force-majeure defenses where the tenant simply asserted that "the pandemic" disrupted business. The court required tenants to show specifically why the pandemic — as distinct from, say, the tenant's pre-existing financial weakness — caused the rent default. Tenants who could not draw that direct line lost.

Practical lesson: when you invoke force majeure, you need a documentary record showing the specific causal chain. Email traffic, internal memos, financial impact analyses. The clause is only as strong as the file behind it.

The "act of government" branch is doing the real work

What actually excused performance in pandemic cases was not the virus — it was the government shutdown order. Restaurants forced to close by executive order had a much stronger defense than restaurants that closed voluntarily because business had collapsed.

Make sure your clause expressly covers "any governmental order, mandate, restriction, regulation, lockdown, quarantine, or shutdown order, whether or not lawful, that prevents or materially impairs performance." That last phrase — "whether or not lawful" — matters more than people realize. Some pandemic-era orders were later struck down, and parties who had relied on them faced arguments that the underlying excuse was invalid retroactively.

Adding the disjunctive ("whether or not lawful") sidesteps that whole problem. If the government ordered you to close and you complied, you're excused, full stop.

The notice problem

Almost every force-majeure clause I see is silent on notice. New York courts will read in a reasonable-time requirement, but reasonable to a judge and reasonable to a counterparty are very different things.

Best practice for 2026: include an explicit notice clause. "The affected party shall notify the other party in writing within ten (10) business days of the event, identifying the specific event, the affected obligations, the anticipated duration, and the steps being taken to mitigate." Without this language, you can lose the defense entirely by being silent for too long.

Mitigation: the underappreciated requirement

New York law requires a party invoking force majeure to take commercially reasonable steps to perform despite the event. Few clauses spell out what that means. The result is that the party seeking the excuse has to defend, after the fact, what it did and did not do — usually against hindsight that suggests they could have done more.

Define "commercially reasonable efforts" in the clause itself. For example: "Commercially reasonable efforts means efforts a reasonable business in the affected party's industry and circumstances would undertake, but shall not require expenditures exceeding 10% of the value of the affected obligation, or the assumption of operational risks materially exceeding the risks contemplated at signing." Specific, defensible, much easier to litigate.

Termination rights

Without a termination right, force majeure puts the parties in suspended animation indefinitely. The non-performing party is excused; the other party is stuck waiting. Pre-pandemic this was a theoretical problem. Post-pandemic, courts have seen multiple cases where the suspension dragged on for over a year.

Add a termination right: "If the force majeure event continues for more than [90/120/180] days, either party may terminate this agreement on written notice, without further liability except for [accrued obligations / refund of prepayments / etc.]." Choose the duration based on the underlying commercial relationship. A construction contract probably needs 180 days; a software subscription needs 30.

Three drafting fixes for 2026

1. Add an explicit notice timeline. Ten business days is the market standard for commercial contracts.

2. Define "commercially reasonable efforts." Without it, the excused party may have to prove they tried everything — a moving target.

3. Add a termination right. Without one, you're in suspended animation indefinitely.

The "frustration of purpose" backup

Even where force majeure fails, New York recognizes the common-law doctrines of impossibility and frustration of purpose. These are narrower than most clients hope but worth knowing about. Impossibility requires that performance has become objectively impossible, not merely uneconomic. Frustration of purpose requires that the purpose of the contract has been destroyed by an event neither party anticipated.

The doctrines are escape hatches, not strategies. If you're relying on them at signing, redraft the force-majeure clause instead.

The supply-chain variant

2022-2024 also produced a wave of supply-chain force-majeure cases. Sellers argued that shortages, port congestion, and shipping delays excused late delivery. Buyers argued that those were ordinary market risks the seller should have priced in.

The case law is mixed but trending against sellers. The dominant theme: "you could have bought materials earlier, sourced from a different supplier, or paid an air-freight premium. You chose not to. That's a business decision, not a force-majeure event." If your contract is exposed to supply-chain risk, name the specific risks — "port closure exceeding 14 consecutive days at the Port of Long Beach" — rather than relying on the general clause.

Bottom line

Force majeure is no longer boilerplate. The clauses your company has been carrying for a decade should be reviewed and modernized before the next renewal cycle. The cost of doing it now is a fraction of the cost of litigating it later — and the post-pandemic case law has made litigation harder, not easier, for the party invoking the defense.