Force Majeure in the Modern Era: What Is an “Unforeseeable Event”?

The “force majeure” clause has long lingered in the shadows of business contracts, being viewed as routine legal boilerplate. But in the face of disruptions like the Red Sea shipping crisis and the sweeping 2020 lockdowns and business failures, these paragraphs have leapt to center stage. In an era some have called “permacrisis” — a continuous state of global uncertainty — the threshold for an event to qualify as truly “unforeseeable” is getting ever higher. This reality demands detailed contract drafting, sharp analysis and proactive risk management.

Force majeure is an excuse for nonperformance based on a superior force or event that cannot be reasonably foreseen or controlled. It rests on three pillars. First, the event must be external and completely outside the affected party’s control. Second, it must be unavoidable, such that, even reasonable care, the consequences could not be prevented or overcome. The third pillar is unforeseeability. Courts frequently ask: was this risk something you could and should have anticipated? If so, it may no longer be protectable, even if it appears in a long list of listed events.

The definition of “foreseeability” is shifting as we confront the “new normal.” Take the weather: businesses have long relied on “acts of God” to cover extraordinary storm damage. Yet climate change has blurred the line between the routine and the extraordinary. A once-rare “one-in-100-year” flood may now be expected every few years. In geopolitics, events once unthinkable — such as the Russian invasion of Ukraine — sparked energy crises across Europe. After 2022, what counts as an “unexpected” embargo in global supply chains? COVID-19 was the defining force majeure event in 2020; today, courts may look skeptically at claims that a COVID variant made operations unforeseeably impossible in 2025. Similarly, as cyber warfare escalates, lawyers and judges debate whether a crippling, state-sponsored hack is really beyond the realm of prudent corporate planning.

Large corporations, deemed sophisticated and well-resourced, are expected to foresee a wider array of risks than a small local supplier. If you strike a deal during mounting international tension, courts may rule that such risk is a “known unknown” and deny force majeure relief. There is also a distinction between economic hardship and true impossibility: contracts rarely excuse performance just because costs have skyrocketed.

Against this backdrop, efficient contract drafting is essential. Vague terms like “act of God” no longer suffice. Instead, contracting parties must expressly include pandemics, cyber-attacks and supply chain disruptions. Clear and timely notice requirements should be observed. Many force majeure claims fail not because of the event itself, but because notice was sent too late. And even when a triggering event occurs, parties must show good faith efforts to find workarounds.

In today’s interconnected world, the most reliable preparation for the unforeseeable is a contract that assumes it may and likely will, happen. Consult with an experienced business contracts attorney who understands both the letter of the law and the modern nuances of risk.

At the Law Offices of Donald W. Hudspeth P.C. in Phoenix, Arizona, we take a plain-English approach to contract drafting, so that our clients understand their rights and obligations clearly. Call us today at 866-696-2033 or contact us online to arrange a meeting.