Force Majeure Clauses in Construction Contracts: What They Cover and What They Do Not
Force majeure became a household term in 2020 when contractors across the country tried to invoke it for COVID-related delays and discovered that their contracts defined it very narrowly. Understanding what your force majeure clause actually covers before you sign is better than finding out during a crisis.
Before you price
What force majeure means
Force majeure is French for superior force. In contract law, it refers to events beyond the control of either party that excuse performance or delay obligations.
In construction contracts, force majeure clauses typically excuse the contractor from delay penalties when the delay is caused by a covered event. They may also allow contract termination without penalty if the event continues beyond a defined period.
The key word is 'covered.' Force majeure clauses list specific events that qualify. If the event that caused your delay is not on the list, the clause does not help you.
What is typically covered
Standard force majeure lists usually include: natural disasters (hurricanes, earthquakes, floods), war and civil unrest, acts of government (government-ordered shutdowns, changes in law), fire, strikes affecting the industry broadly.
Some contracts include pandemic or epidemic on the force majeure list. Many do not. This was the source of enormous disputes in 2020.
Material shortages and supply chain disruptions are often excluded. Price escalation is almost always excluded. A steel shortage that pushes your costs up 40 percent is typically not a force majeure event under most contracts.
What you have to do to invoke it
Force majeure clauses require prompt written notice. Most contracts give you a short window, often 7 to 21 days from when you know or should have known about the event, to send written notice claiming force majeure.
Missing the notice window typically waives the right to invoke the clause, regardless of whether the underlying event qualifies.
The notice should describe the event, explain how it is causing delay, and estimate the duration of the impact. Then follow up with documentation as the situation develops.
What force majeure usually does not give you
Time, not money. Most force majeure clauses excuse the delay. They give you a time extension and protect you from liquidated damages. They do not give you additional compensation for the increased cost of performing during or after the event.
There are exceptions: some contracts include force majeure as a basis for price adjustment, particularly on government contracts. But this is not the default.
If you need both time and money for a force majeure event, you typically need a separate provision, such as a changed conditions clause or a specific price escalation clause.