ANALYSIS: It’s Time to Rewrite Force Majeure

The next force majeure catastrophe will be as unexpected and unpredictable as Covid-19 was. Whatever form it takes, transactional lawyers will likely not have provided for it in contractual force majeure clauses. Will we again struggle to fit the unexpected into a traditional force majeure construct such as “act of God”? Probably, but we don’t have to. Instead, we should simply change the way we write these provisions.

Major catastrophes have a habit of being unique, and they don’t fall neatly into the litany of horrible happenings by which “events of force majeure” are defined. When the Covid-19 ...