Drafting Boilerplate: Using Examples in Force Majeure Provisions

Broad Force Majeure Definition: Examples Listed After the Defined Scope

One common way to phrase a force majeure provision is to start with a broad scope and then clarify with examples: "Force Majeure Event means any event outside the party’s control, which may include fire, war..."

In this version, the list of events — fire, war, and so on — does not limit the scope of the provision. Instead, it clarifies what could potentially qualify as a force majeure event. The general term "any event outside the party’s control" sets a wide net, and the examples provided do not limit the scope.

When representing vendors, I prefer this approach. Why? Because vendors traditionally are the ones more likely to experience and claim force majeure events. They are the ones performing the service or delivering the product under the agreement. 

This structure gives the vendor more flexibility to claim a force majeure event, as almost any event outside their control could fall within this broad definition. The examples merely help illustrate the types of situations intended but the vendor isn't restricted to those alone.

Narrow Force Majeure Definition: Examples First with a Catch-All

Another way to draft the provision is to list the specific examples first and then add a catch-all phrase: "Force Majeure Event means fire, war, … and any other event outside the party’s control."

This phrasing results in a narrower scope. The definition uses examples to identify some events, with the catch-all phrase appearing at the end. Courts often interpret such a catch-all as limited to events similar to the listed examples. (If you like Latin legal concepts, this is based on the legal principle called ejusdem generis, which means “of the same kind.”) Essentially, the catch-all term is understood to cover only events that are similar to those specifically mentioned.

When I represent customers, I prefer this narrower scope. Listing specific examples first and adding "and any other event outside the party’s control" at the end provides less wiggle room for a vendor to claim force majeure. The examples set a standard, and only events that align with those types — such as fires or wars — would be covered by the provision. To reinforce this interpretation, I might even add the word "similar" before "event" to make it clear: "Force Majeure Event means fire, war, … and any similar event outside the party’s control."

Why the Wording Matters: Vendor vs. Customer Perspectives

Understanding these distinctions in force majeure clauses is crucial, especially when negotiating contracts from different perspectives. Vendors typically want a broader clause to maximize the range of events that can excuse their performance. Conversely, customers often prefer a narrower clause to minimize uncertainty and limit the number of acceptable excuses

Practical Implications of Broad vs. Narrow Force Majeure Clauses

Let’s look at the practical implications:

1. Broad Definition ("including fire, war…"):
   • Vendors benefit from a broad force majeure definition. If a vendor faces unforeseen challenges that aren't specifically listed (like a unique cyberattack or a specific government intervention), this wording might still protect them. The phrase "any event outside the party’s control" could cover a wide range of scenarios, reducing the likelihood of disputes about what qualifies as force majeure.
2. Narrow Definition ("fire, war… and any similar event"):
   • Customers benefit from a narrower definition. The list of specific events sets a clear standard, and the catch-all phrase at the end is limited to events similar to those listed. This approach reduces the risk of a vendor trying to use the clause to excuse performance for events that are not truly force majeure in nature. Adding "similar" further tightens the scope, ensuring only comparable events qualify.

Drafting Tips for Force Majeure Provisions

When drafting or negotiating a force majeure provision, consider the following:

1. Clarity in Language: Clearly define what constitutes a force majeure event. Use specific examples and decide whether to use broad or narrow wording based on the interests of the party you represent.

2. Placement of Examples: Decide whether to place examples before or after a general term. Putting examples first followed by a catch-all term ("fire, war… and any event") usually results in a narrower interpretation, while a general term followed by examples ("any event… including fire, war") creates a broader scope.

3. Use of Qualifying Words: To narrow the scope, consider adding qualifiers like "similar" before the catch-all term ("any similar event outside the party's control").

4. Negotiation Strategy: Always consider your client’s position. If representing a vendor, push for broader language to maximize protection against unforeseeable events. If representing a customer, aim for a narrower scope to limit excuses for non-performance.

Getting Force Majeure Right

Force majeure clauses are more than just boilerplate language — they have real-world implications that can dramatically affect contract performance. By understanding how to strategically draft these provisions, whether favoring a broad or narrow interpretation, you can better protect your client's interests. Always consider how the placement of examples, use of general terms, and choice of words can impact the enforceability and scope of the force majeure provision.

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