Force majeure is a contract clause that excuses or delays a party's performance when an extraordinary event outside its reasonable control prevents it. In a commercial lease, it typically covers events such as natural disasters, war, government orders, and now pandemics, and it usually excuses timing obligations but not the tenant's duty to pay rent.
How Does Force Majeure Work?
Force majeure works by suspending or excusing an affected obligation for the duration of a qualifying event, provided the event is listed in the clause and genuinely prevents performance. The party invoking it must show the event falls within the enumerated triggers, was beyond its control, and caused the failure, not merely made performance harder or less profitable.
The list of triggers is decisive. Per legal guidance from Womble Bond Dickinson and Dickinson Wright, courts read force majeure clauses narrowly and generally require the specific event to be named or to fall within a catch-all. After COVID-19, many clauses were redrafted to name pandemics, epidemics, and health emergencies explicitly, because clauses silent on those events often failed to cover them. A force majeure clause excuses timing and non-monetary duties far more readily than the obligation to pay money.
Element | What it requires |
Enumerated event | The event is named in the clause or fits a catch-all |
Causation | The event actually prevented performance, not just raised cost |
Beyond control | The party could not have avoided or overcome the event |
Notice | Prompt written notice to the other party, if required |
Duration | Performance is excused only while the event continues |
Why Force Majeure Matters
Force majeure matters because it allocates the risk of extraordinary events between landlord and tenant, and the drafting decides who absorbs a shock like a pandemic or a natural disaster. A precisely drafted clause is the difference between a defensible excuse and a breach.
The rent carve-out is where the money is. Per practitioner guidance from MSN Attorneys and Oppenheim Law, most commercial force majeure clauses carve out the obligation to pay rent, and courts almost always enforce that carve-out, holding tenants liable regardless of the triggering event. During COVID-19, tenants that tried to escape rent through force majeure alone largely failed where the clause excluded monetary obligations. The core discipline: read whether rent is carved out before assuming any event excuses payment, because in most leases it does not.
Example
Force majeure turns on the exact wording, and the same event can leave a tenant either fully liable or partly excused. A restaurant tenant paying $12,000 per month faces a government order that closes indoor dining for three months but still allows takeout service. Two lease versions produce very different rent outcomes.
Lease version | Force majeure wording | Rent outcome |
Version A | Excuses all obligations, no rent carve-out, names government orders | Rent may be reduced for the closed portion of use |
Version B | Names government orders but carves out payment of rent | Full $12,000 per month remains due |
Under Version B the tenant owes the full $36,000 over three months despite the closure, because the carve-out preserves the rent duty. Under Version A, mirroring one reported COVID-19 ruling where a closure order left takeout operating, a court excused the tenant from the portion of rent tied to the shut-down dining use while leaving the rest due. Same event, same closure, opposite exposure, driven entirely by whether rent was carved out.
Variations and Edge Cases
Force majeure varies by the events listed, whether rent is carved out, and how it interacts with related common-law doctrines. Post-pandemic language, a narrow catch-all phrase, a notice requirement, and the fallback doctrines of impossibility and frustration of purpose each shape whether an excuse holds. The variants below show where the clause and its neighbors diverge.
Variant or concept | Treatment |
Rent carve-out | Payment of rent excluded from force majeure; the common form |
Pandemic language | Post-COVID clauses name epidemics and health emergencies expressly |
Catch-all phrase | "Or other events beyond reasonable control" read narrowly by courts |
Impossibility | Common-law doctrine excusing performance made objectively impossible |
Frustration of purpose | Doctrine where the event destroys the deal's core purpose |
Notice requirement | Failure to give timely notice can waive the excuse |
Force Majeure vs Impossibility
Force majeure is often confused with the doctrine of impossibility, and they can apply to the same event. Force majeure is a contract clause: it excuses performance only for events the parties listed, on the terms they wrote. Impossibility is a common-law doctrine that can excuse performance when an unforeseen event makes it objectively impossible, even absent any clause.
The clause is negotiated; the doctrine is a fallback. A force majeure clause governs first and can override the doctrine by defining what is and is not excused. Impossibility applies only in narrow cases, such as destruction of the leased premises or a law that makes performance objectively impossible, and courts apply it far more sparingly than tenants hope. A tenant leans on force majeure when the event is named and on impossibility only when it is not.
Frequently Asked Questions
What is force majeure in a commercial lease?Force majeure is a clause that excuses or delays a party's performance when an extraordinary event outside its control, such as a natural disaster, war, government order, or pandemic, prevents it. In a lease it usually excuses timing and non-monetary duties but not the obligation to pay rent.
Does force majeure excuse a tenant from paying rent?Usually not. Most commercial force majeure clauses carve out the obligation to pay rent, and courts almost always enforce that carve-out, holding tenants liable regardless of the event. During COVID-19, tenants relying on force majeure alone to avoid rent largely failed where payment was excluded.
What is the difference between force majeure and impossibility?Force majeure is a negotiated contract clause that excuses only the events the parties listed. Impossibility is a common-law doctrine that can excuse performance made objectively impossible even without a clause. The clause governs first, and courts apply the impossibility doctrine far more sparingly.
Related Terms
Estoppel Certificate
Subordination Agreement
Renewal Option
Triple Net Lease
SNDA