Podcast Companion — Episode 19: Force Majeure

Pairs with InglésLegal Podcast, EP19

Not every failure to perform is a party’s fault. Episode 19 covers Force Majeure — the clause that allocates risk when extraordinary events beyond the parties’ control get in the way.

The Concept

Force majeure excuses performance — temporarily or permanently — when an event is unforeseeable or beyond reasonable control, materially prevents or delays performance, wasn’t contractually assumed as a risk, and satisfies the contract’s own requirements, such as notice and mitigation. Common triggering events include natural disasters, war, government orders, and pandemics.

The key point in common law: the clause governs. Without an express force majeure provision, relief for unforeseen events is much harder to obtain.

Applied Example

An international supply contract is disrupted when a government order closes ports. The supplier invokes force majeure, provides timely notice, and demonstrates that performance was genuinely impossible. Result: the delay is excused, with no penalties during the event — but only because the clause and the notice requirements were both properly satisfied.

Key Expressions from This Episode

Unforeseeable events
Meaning: occurrences that could not reasonably have been anticipated at the time of contracting.
Spanish equivalent: eventos imprevisibles

Beyond control
Meaning: circumstances outside a party’s reasonable ability to prevent or manage.
Spanish equivalent: fuera de control razonable

Excusable nonperformance
Meaning: a failure to perform that the law or contract treats as legally justified, not a breach.
Spanish equivalent: incumplimiento justificado

Professional Tip

List specific triggering events rather than relying on vague, open-ended language, require prompt and documented notice, and impose a duty to mitigate. Define the consequences clearly — suspension, extension, or termination — and coordinate the clause with your termination and material breach provisions. Force majeure isn’t an automatic exit; it has to be proven, event by event.

Why It Matters

A cost increase alone generally isn’t enough to trigger force majeure — the event has to make performance genuinely impossible, not just less profitable. Knowing that distinction, and drafting for it in advance, is what separates a force majeure clause that actually works from one that invites litigation the moment it’s tested.

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For the full discussion, including a model force majeure clause, listen to Episode 19 — Force Majeure — on the InglésLegal podcast.