Force Majeure
A contractual provision excusing one or both parties from performance when extraordinary events outside the parties' control prevent performance. Force majeure is a creature of contract, Texas does not recognize a general common-law force majeure doctrine.
A force majeure clause is a contractual provision excusing one or both parties from performance when extraordinary events outside the parties' control prevent performance. Force majeure is a creature of contract, Texas does not recognize a general common-law force majeure doctrine excusing performance for unanticipated events.
Typical structure
A force majeure clause specifies (1) the events that trigger force majeure (specifically enumerated and/or by general language); (2) the obligations excused (typically performance, not payment); (3) notice requirements; (4) duration of excuse; and (5) termination rights if the force majeure persists beyond a specified period.
Common enumerated events
Acts of God (hurricanes, floods, earthquakes); war and civil unrest; terrorism; government action; labor strikes; pandemic and epidemic; failure of utilities; transportation disruptions. The COVID-19 pandemic generated extensive force-majeure litigation; Texas courts generally enforced clear contract language and rejected expansive readings of generic "Act of God" or "circumstances beyond our control" provisions.
Texas interpretation
Texas courts construe force majeure clauses according to their plain language, events not within the express terms are not excused. Generic language is read narrowly. The clause must be triggered by an event that prevents performance, not merely makes performance more difficult or expensive.
Post-COVID, sophisticated commercial drafting includes specific pandemic and government-shutdown enumerations rather than relying on generic "Act of God" language. Notice and mitigation obligations are commonly negotiated to balance the parties' risk allocation.
Companion article: Contract Disputes in Texas