What's one common mistake you see in force majeure clauses, especially after recent global disruptions? How have you modified your approach to drafting these provisions?

One common mistake I frequently see in force majeure clauses is the overuse of vague, catch-all language like "any event beyond the parties' control." While this seems comprehensive, it often leads to disputes about what events truly qualify. Especially after COVID-19 and global supply chain disruptions, it became clear that such clauses need specificity. I now recommend drafting tailored force majeure clauses that include concrete examples—like pandemics, cyberattacks, and government-imposed lockdowns—and clearly define the consequences. We also specify procedural obligations: notice requirements, timelines, and proof burden. A well-defined force majeure clause is not only more enforceable but also offers better protection and predictability for all parties.

The most pervasive mistake in force majeure clauses is treating them as dusty, boilerplate relics from a more predictable era. Recent global disruptions have exposed these clauses as dangerously outdated, often silent on modern risks ranging from COVID-19 and other pandemics to cyberattacks, climate-driven disasters, politically-driven tariffs, and politically motivated sanctions. My drafting approach has shifted toward proactive risk modeling, explicitly naming these foreseeable "unforeseeables" and building in procedures that courts can enforce with precision. A modern clause should anchor its trigger to objective external standards, such as government declarations, and include defined recovery windows before termination is permitted. Equally important, it must anticipate today's systemic vulnerabilities, cascading supply chain failures, ESG-driven compliance shocks, and digital infrastructure outages. The best clauses now operate not as afterthoughts, but as living roadmaps, detailing notice, mitigation, and recovery duties with such clarity that the contract itself becomes a stabilizing force, even amid chaos.

From my experience in commercial real estate funding, the biggest mistake is when clauses vaguely suspend the entire contract without carving out financial obligations. I once reviewed a deal where a borrower believed loan payments stopped altogether, which caused tension and serious delays. To prevent that, I now insist on defining which duties must continue, especially around debt service, while still allowing flexibility for true disruptions.

The biggest mistake I see is when force majeure clauses don't account for cascading effects on real estate transactions--like when a seller can't move out because their new home purchase fell through due to the same disruption. In our business, we've learned to build in flexible closing timelines and alternative solutions, because a homeowner facing foreclosure can't wait months for a 'disruption' to resolve. I now include specific provisions for continuing essential services and maintaining property condition even during force majeure events, which protects both parties when life throws curveballs.

One mistake I often see is that force majeure clauses are written too narrowly, focusing only on acts of God but ignoring events like government shutdowns or pandemics. After recent disruptions, I started drafting them to be more flexible, specifically naming events outside a party's control. The big takeaway from recent years was that you can't skip tailoring the provision to the realities of your client's industry.

A common issue with force majeure clauses in contracts is that they are based on, or outright copied from, outdated templates. After the COVID-19 pandemic, it became clear to many businesses that their contracts were ambiguous as to the respective parties rights and responsibilities under certain circumstances like pandemics and government-imposed shutdowns. This oversight left many businesses vulnerable and resulted in significant litigation as to how, if at all, the language typically used and repeated in many force majeure clauses affected obligations to perform under such circumstances. That is not to say that such clauses should be drafted narrowly or broadly. As with any agreement, that is dependent on the intent and understanding of the parties in combination with the purpose of the agreement. Such clauses should be drafted in a manner that makes the respective parties rights and responsibilities under such circumstances clear. This will likely require greater specificity as to both the circumstances contemplated by the clause and specificity as to the parties rights and obligations if such circumstances occur. Such a clause, if carefully drafted, can still cover a broad set of circumstances. It may also be helpful to lay out clear procedures, like steps like how to promptly notify each other and guidelines on how obligations are managed, if they're paused or terminated, and the time periods to act or respond during such events. This strategy lessens the uncertainty and confusion when a crisis hits. A well-drafted force majeure clause prevents future legal headaches and may bring clarity and order to your client, making sure that their rights and obligations are clear even during extraordinary times. These clauses and the issues related to their enforcement after the COVID-19 pandemic serves as a reminder that "standard" contractual clauses, and the language within, should be revisited as often as practicable.