Force Majeure Clause: Meaning, Sample & Drafting Tips (India)
A force majeure clause excuses or suspends a party's performance when an event beyond its reasonable control — such as natural disaster, war, epidemic or government action — prevents it from performing. In India, an express clause is read under section 32 of the Indian Contract Act, 1872; without one, a party must rely on frustration under section 56.
How it works under Indian law
Section 56 of the Indian Contract Act, 1872 makes a contract void when performance becomes impossible or unlawful after it is made. The Supreme Court has read "impossible" in a practical sense — performance that has become impracticable or useless in light of the object of the contract (Satyabrata Ghose v Mugneeram Bangur, 1954) — but a mere increase in cost or difficulty is not enough.
Where the contract itself contains a force majeure clause, the Supreme Court has explained that the clause is a contingency dealt with under section 32, while section 56 applies to events outside the contract (Energy Watchdog v CERC, 2017). The wording of the clause therefore decides which events count and what relief follows.
The COVID-19 period produced many disputes over whether "epidemic", "lockdown" or "government action" was covered. Courts have generally insisted that the event actually prevented performance (not just made it uneconomic) and that the party gave notice and tried to mitigate.
Drafting checklist
- Define the qualifying events, and add a general "beyond reasonable control" limb.
- Expressly include or exclude pandemics, government orders, cyber-attacks and supply-chain failures as suits the deal.
- Exclude payment obligations and events caused by the affected party's own default.
- Set a notice deadline and require details, mitigation and regular updates.
- State the relief: suspension, extension of time, fee abatement.
- Give a long-stop termination right after a defined period.
Sample force majeure clause
Two versions: a standard position and an alternative you can offer in negotiation. Replace every [placeholder] before use.
Standard force majeure clause
Standard positionNeither Party shall be liable for any failure or delay in performing its obligations (other than payment obligations) to the extent caused by a Force Majeure Event. "Force Majeure Event" means an event beyond the reasonable control of the affected Party, including fire, flood, earthquake, epidemic or pandemic, war, terrorism, riot, and any law, order or restriction of a government authority, but excluding strikes by the affected Party's own workforce and lack of funds. The affected Party shall notify the other Party in writing within [7] days of becoming aware of the Force Majeure Event, giving details and the expected duration, and shall use reasonable efforts to mitigate its effect. Performance shall be suspended for the duration of the event. If the Force Majeure Event continues for more than [90] consecutive days, either Party may terminate this Agreement by [30] days' written notice without liability.
Customer-favourable version (business continuity and fee relief)
Customer-favourable — the supplier must keep a continuity plan and fees abate[Supplier] shall be entitled to relief under this Clause only if, and to the extent that, the Force Majeure Event could not have been prevented by [Supplier] implementing the business continuity and disaster recovery plan required by Schedule [X]. During any period in which the Services are suspended due to a Force Majeure Event, the Fees for the affected Services shall abate proportionately, and [Customer] may procure substitute services from a third party without breach of any exclusivity obligation.
Who pushes for what
Typical negotiating positions on each side of the table.
Supplier / service provider
Wants a broad event list including supply-chain and subcontractor failures, and no fee abatement.
Customer / buyer
Wants a narrow list, continuity-plan conditions, fee abatement and the right to source elsewhere.
Common middle ground
Standard list plus pandemic and government action, mitigation duty, abatement after a short grace period.
Common mistakes
- A list of events with no causation requirement — the event must actually prevent performance.
- Treating force majeure as covering price increases or market downturns.
- No notice timeline, making it hard to tell whether relief was claimed properly.
- No termination long-stop, leaving the contract suspended indefinitely.
Frequently asked questions
Is COVID-19 a force majeure event in India?
It depends on the clause and the facts. Where the clause covers epidemics or government restrictions and those events actually prevented performance, relief may be available. A pandemic does not automatically excuse every obligation.
What is the difference between force majeure and frustration?
Force majeure is a contractual clause, read under section 32, whose consequences the parties agree. Frustration under section 56 is a rule of law that makes the contract void when performance becomes impossible; it applies where the contract does not deal with the event.
Does force majeure excuse payment?
Usually not, because most clauses expressly exclude payment obligations. Even where they do not, a party must show that the event actually prevented it from paying, which is rarely the case.
Related tools, formats and guides
Build a clause library with approved fallbacks in CaseDocker
Store your approved clause language and pre-agreed fallback positions in CaseDocker's Contract Management module, and use Playbooks to route any deviation to the right approver before the contract goes out for signature.