Force Majeure

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.

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. Whether a clause reaches events that only hinder or delay performance depends on its wording. A Texas court of appeals has held that a foreseeable downturn in the oil market, which made performance more economically burdensome, was not a force majeure event under a catch-all provision that did not list it. TEC Olmos, LLC v. ConocoPhillips Co., 555 S.W.3d 176 (Tex. App.-Houston [1st Dist.] 2018).

Companion article: Contract Disputes in Texas