Drafting a Force Majeure Clause - Checklist

Drafting note

Parties to a contract should keep the following considerations in mind while drafting their force majeure clause.

Checklist

Checklist

Notes

Define the force majeure clause with specific events, which can potentially make performance of the contractual obligations impossible and are not within the control of the parties as opposed to events which the party can possibly control and mitigate. It is important to decide whether such definition is to be kept broad and unqualified or narrow.

Carefully consider in advance (if possible), the obligations which may not be capable of being performed should there be a future force majeure event and prescribe alternative ways in which such obligations can be fulfilled, and risks can be mitigated.

Instead of straightforward termination, a contract can have provisions for temporary suspension or extension to provide an opportunity to the defaulting party to resume its obligation once the force majeure event is over.

Having a proper procedure in place for invocation of the force majeure clause by way of service of notice within a prescribed period of time to enable the defaulting party to opt for temporary suspension or extension of the contract, if so required.