Force Majeure Clauses | Sprintlaw Australia

If you run a small business, you’ve probably had at least one “we didn’t see that coming” moment - a supplier shutdown, a shipping delay, a sudden government restriction, or a major systems outage.

When those disruptions hit, one question often comes up fast: what does force majeure mean, and can it help you pause obligations under a contract (or protect you when the other side can’t deliver)?

Force majeure clauses can be powerful, but they’re also commonly misunderstood. A clause won’t automatically “cancel” a contract just because something went wrong. And in Australia, whether you can rely on a force majeure clause depends heavily on your contract wording and what actually happened.

Below, we’ll break down what force majeure means in plain English, common force majeure events, how force majeure affects your business contracts, and practical steps you can take to reduce risk before the next disruption.

What Is Force Majeure (And What Does It Actually Do)?

Force majeure (a French term often translated as “superior force”) is a contract concept that deals with unexpected events outside a party’s control.

In most business contracts, a force majeure clause is designed to address situations where a party can’t perform its obligations because of an extraordinary event that couldn’t reasonably be prevented.

So, what is a force majeure clause in practical terms?

It can excuse or suspend performance (for example, delaying delivery obligations while the event continues).
It may allow one or both parties to terminate the contract if the event continues for a specified period.
It can set out notice requirements (for example, requiring written notice within a certain number of days).
It often includes mitigation requirements (meaning you must take reasonable steps to reduce the impact).

Importantly, force majeure is not a “free pass” to walk away from a deal. It’s a risk-allocation tool - the clause tells you who bears the risk of certain major disruptions, and what happens if they occur.

Is Force Majeure A Legal Rule In Australia?

In Australia, force majeure is generally not automatic. In most situations, you only have force majeure rights if your contract includes a force majeure clause (and you follow it).

However, even without a force majeure clause, there are other legal doctrines that may apply in limited circumstances. For example, a contract may come to an end due to frustration (where an unforeseen event makes performance impossible or fundamentally different from what the parties agreed), or where performance becomes illegal due to a change in law. These principles are separate to force majeure, can be harder to establish, and don’t necessarily produce the same outcomes as a well-drafted clause.

That’s why it’s so important to treat your contracts as living documents - if your contract doesn’t clearly cover major disruption risks, you may be left arguing about general contract law principles instead of relying on a clear clause.

As a starting point, it helps to understand what makes a contract legally binding, because force majeure (and related doctrines like frustration) ultimately affect when (and how) contractual obligations can be adjusted or brought to an end.

What Is A Force Majeure Event? Common Examples For Small Businesses

A force majeure event is the type of extraordinary circumstance that triggers the clause.

But here’s the catch: there’s no one-size-fits-all “force majeure event definition” that applies to every contract. In practice, it depends on how your clause is drafted.

Many clauses include a list of events, such as:

Natural disasters (floods, bushfires, cyclones, earthquakes)
Pandemics and public health emergencies
Government actions (lockdowns, border closures, import/export bans, changes in law that make performance illegal)
War, terrorism, or civil unrest
Industrial action (strikes or widespread labour disruption)
Major supply chain failures (sometimes included, sometimes excluded)
Utilities or infrastructure failure (power, internet, transport shutdowns - again, depends on wording)

Some clauses also use broader “catch-all” wording like “any event beyond a party’s reasonable control.” That sounds helpful, but broad wording can also create uncertainty and disputes about what counts.

Force Majeure vs “Business As Usual” Problems

Not everything is force majeure, even if it’s painful or expensive.

Typical examples that often don’t qualify (unless the clause specifically includes them) include:

cash flow issues or inability to pay
price increases or profitability problems
foreseeable delays you could have planned for
internal staffing shortages (depending on the context)

If the event is “part of the normal ups and downs” of your industry, it’s less likely to fall within force majeure unless the clause clearly says it does.

How Force Majeure Affects Your Business Contracts (Rights, Obligations And Practical Outcomes)

If a valid force majeure event occurs, what happens next depends on the clause - but there are a few outcomes we see frequently in business contracts.

1) Performance May Be Suspended (Not Cancelled)

Many force majeure clauses suspend obligations for the duration of the event. For example:

A supplier’s delivery deadline might be extended.
A service provider might pause service levels without being in breach.

This matters because a suspension still keeps the contract alive. Once the event is over, performance usually resumes (sometimes with revised timeframes).

2) Termination Rights May Apply After A Set Period

Some clauses say that if the force majeure event continues for (say) 30, 60, or 90 days, either party may terminate.

Termination rights can be a double-edged sword. They can help you exit an unworkable arrangement, but they can also give your customer or supplier a clean exit from a deal you want to keep.

3) Notice Requirements Can Make Or Break Your Claim

Force majeure clauses often require:

notice in writing
specific details about the event and its impact
notice within a strict timeframe

If you miss the notice window, you may lose the ability to rely on the clause - even if the event itself would have qualified.

4) You May Need To Mitigate The Impact

Many clauses require you to take reasonable steps to reduce the disruption. For instance:

sourcing alternate materials
using substitute freight routes
reallocating resources to meet partial obligations

In other words, you may need to show you didn’t simply down tools at the first sign of trouble.

5) The Clause May Limit Liability (Or It May Not)

Force majeure clauses often interact with other risk provisions, including limitation of liability clauses and indemnities.

For example, your contract might excuse your failure to deliver on time, but still require you to refund prepayments or manage customer losses in a specific way (depending on how the contract is drafted).

It’s a good idea to review how force majeure works alongside your limitation of liability terms, because the combined effect can significantly change your financial exposure during a disruption.

Key Clauses To Check If You Want To Rely On Force Majeure

If you’re trying to work out whether a force majeure clause applies (or you’re drafting contracts for the future), here are the key points to check.

Is The Event Listed Or Covered By The Wording?

Start with the definition section of the clause. Does it mention the event you’re dealing with (for example, “pandemic”, “government restriction”, “cyber incident”, “transport disruption”)?

If it’s not listed, does the clause include a broader category that still reasonably covers the event?

Does The Event Have To Be “Unforeseeable”?

Some clauses require the event to be unforeseeable, while others focus on whether it was beyond reasonable control. That distinction can matter, especially for events that have become more common (like certain weather events, supply chain issues, or recurring restrictions).

Does The Event Make Performance Impossible, Or Just Harder?

Many clauses require that performance is prevented or hindered. If you can technically perform, but it’s just more expensive or inconvenient, you may not be covered.

This is where force majeure disputes often arise - one party says “we can’t perform,” the other says “you can, you just don’t want to at that price.”

What Are The Notice And Evidence Requirements?

Check the formalities:

How must notice be delivered (email, post, portal)?
Who must receive it?
What information must be included?
Do you need to provide ongoing updates?

From a practical standpoint, it also helps to keep records: supplier communications, government announcements, freight notices, incident reports, and internal timelines.

What Happens To Payments, Deposits And Milestones?

Force majeure clauses often deal with timing, but not always with money.

You should check whether the clause:

pauses payment obligations
requires refunds of unused services
allows you to invoice for partially completed work
changes how milestones are measured

If your agreement has ambiguous payment consequences, you may need to negotiate a variation so both parties have clarity going forward.

How To Manage Force Majeure Risks In Your Contracts (Before And During A Disruption)

The best time to think about force majeure isn’t when a crisis hits - it’s when you’re signing (or renewing) your contracts.

Here are practical steps you can take as a small business owner.

1) Tailor Your Force Majeure Clause To Your Actual Risk Profile

Different businesses face different risks.

For example:

An eCommerce business may care more about freight and platform outages.
A construction business may care more about weather, materials shortages, and government site restrictions.
A professional services business may care more about access to client premises and IT failures.

Rather than relying on a generic clause, it’s worth tailoring the list of force majeure events to match your industry and how you deliver your product or service.

2) Build Clear “What Happens Next” Steps Into The Contract

Good force majeure clauses don’t just define the event - they define the process.

That might include:

who must be notified, and when
how long obligations are suspended
whether either party can terminate
how costs are handled during the disruption
whether substitute performance is permitted (for example, an alternative product or delivery method)

Clarity reduces disputes and helps you preserve commercial relationships when things are already stressful.

3) Make Sure Your Contract Change Process Is Simple And Enforceable

During disruptions, many businesses end up renegotiating delivery dates, service levels, or pricing.

It’s important that your contract allows changes to be made properly (for example, in writing and signed by both parties). Otherwise, you risk a dispute later about what was actually agreed.

Having a clear process for varying a contract can make it much easier to adjust quickly without accidentally undermining your legal position.

4) Check How Force Majeure Interacts With Cancellations And Refunds

If you take upfront payments, deposits, or subscription fees, you’ll want to be particularly careful about what happens if services can’t be delivered.

Depending on what you sell, consumer protections may apply and you may also have contractual cancellation mechanics to consider.

Force majeure isn’t the same thing as a customer choosing to cancel, but in real life these issues overlap. It can be helpful to ensure your contracts and policies align with your approach to cancellation fees so you’re not relying on a single clause to solve every problem.

5) Don’t Forget Your Operational Contracts (Not Just Customer Contracts)

Force majeure risk often starts upstream.

It’s not just about what your customers can demand from you - it’s also about what you can demand from:

suppliers
manufacturers
freight and logistics providers
software and platform providers
landlords and facility operators

If your supplier contract has a broad force majeure clause but your customer contract does not, you can end up “squeezed” in the middle - unable to deliver to customers while still being legally on the hook.

6) Put Key Commercial Terms In Writing (Even When You’re Moving Fast)

When supply chains are unstable, it’s common to rely on quotes, emails, and quick purchase orders.

But disputes often happen because the parties never fully aligned on what was promised and when.

Even outside of force majeure situations, it’s worth understanding whether a quote is legally binding so you can reduce uncertainty when timelines and pricing are changing quickly.

7) If You’re Unsure, Get The Contract Reviewed Before You Trigger The Clause

Invoking force majeure can have major commercial consequences - it may start a termination timer, trigger negotiation rights, or escalate a dispute.

It’s often worth getting legal support before you send the notice, especially if the amounts involved are significant or the relationship is business-critical.

If you’re already renegotiating, make sure any changes are properly documented (and consistent with your existing contract terms) using a clear approach to making amendments.

Key Takeaways

What is force majeure? It’s a contract mechanism that may excuse, suspend, or adjust obligations when extraordinary events outside a party’s control prevent performance.
Force majeure usually depends on your contract wording. In Australia, force majeure protection typically comes from a force majeure clause, although separate doctrines like frustration or illegality may apply in limited cases even without one.
What counts as a force majeure event depends on the wording. Common force majeure events include natural disasters, pandemics, government restrictions, and major disruptions, but the clause must actually capture the event.
Notice and mitigation are crucial. Even if the event qualifies, failing to give notice correctly (or failing to take reasonable steps to reduce the impact) can weaken your ability to rely on the clause.
Force majeure interacts with other terms like payments, cancellation, and liability limits. A clause may pause performance without resolving refunds, deposits, or financial exposure unless the contract is drafted clearly.
The best protection is proactive drafting and review. Tailoring your clauses and having a clear process for contract changes can reduce disputes and keep your business moving during disruptions.

If you’d like help reviewing or drafting contracts with a clear force majeure clause (and practical “what happens next” protections), you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.

Force Majeure: Meaning, Examples And Contract Impacts