For years the force majeure clause was the part of a contract nobody read — boilerplate about acts of God buried near the end. Then supply chains froze and every business in India read it very carefully to find out whether it could pause or escape. Most discovered their clause was too vague to help.
A force majeure clause excuses performance when an extraordinary event beyond your control genuinely prevents it, operating through Section 32 of the Indian Contract Act where it is written in — and Indian courts read it narrowly, so increased cost is not force majeure.
The bottom line
With a clause: Section 32 treats the contract as contingent, and the wording of your clause governs everything.
Without one: the doctrine of frustration under Section 56, which requires performance to become genuinely impossible or unlawful — a much higher bar.
What it never covers: a bad bargain. The Supreme Court in Energy Watchdog v CERC held that costlier or less profitable performance is not force majeure.
What the clause does
Force majeure — superior force — refers to extraordinary events beyond a party's control that prevent performance, and which by the contract's own terms excuse or suspend that performance without it being a breach.
Typical triggers are natural disasters, war, terrorism, riots, government orders and pandemics. The purpose is to allocate the risk of the genuinely unforeseeable, so neither side is punished for something neither could have prevented.
Section 32 against Section 56
Indian law handles this two ways, and which one applies depends entirely on whether you wrote a clause.
With an express clause, Section 32 treats the arrangement as a contingent contract: performance depends on the listed events not occurring. The clause governs, which makes its wording decisive.
Without a clause, Section 56 may apply, and an unforeseen event that makes performance impossible or unlawful can frustrate the contract and render it void. That is a narrower doorway — true impossibility, not difficulty.
So the first question in any dispute is always whether the contract has a clause, and what it actually lists.
Why courts read it narrowly
This is the widely misunderstood point, and the one that decides most claims.
In Energy Watchdog v CERC, the Supreme Court made clear that force majeure cannot be invoked simply because performance became more expensive or less profitable. A rise in costs, a price shock, or a harder-than-expected bargain is not force majeure.
The event must fall within the clause's wording and genuinely prevent performance. A clause listing "acts of God" but not epidemic or government action may not cover a public-health shutdown at all. Vague drafting fails at exactly the moment you need it to work.
Drafting one that holds
- A specific list of events, with a catch-all — "and any other event beyond the reasonable control of the affected party" — placed after the specific list rather than instead of it.
- A causation requirement: the event must prevent or hinder performance, not merely make it costlier.
- Notice: the affected party notifies the other within a set time, with details.
- A duty to mitigate: reasonable steps to overcome or reduce the impact.
- Consequences: suspension of obligations, an extension of time, and a right to terminate if the event runs beyond a defined period.
- Allocation of risk during the event, including who bears ongoing costs.
What a modern clause should name
After 2020, a clause should expressly name epidemics, pandemics and public health emergencies, and government action including lockdowns, restrictions and supply bans. A court will not generously read these into "acts of God".
It should also say whether economic downturn and market shifts are excluded, which they usually are, so that the exclusion is on the page rather than left to argument when someone tries an opportunistic claim.
The post-pandemic clause is specific where the old one was generic. That is the entire lesson.
A worked example
A manufacturer contracts to supply components under an old clause referencing only acts of God, war and natural calamities. A government export ban disrupts its raw material supply.
Because the clause never mentioned government action, and the disruption is arguably economic rather than impossible, the manufacturer struggles to invoke force majeure at all — and may itself be in breach.
Had the clause expressly listed government action, export and import restrictions and pandemics, required notice and mitigation, and allowed suspension and then termination after 60 days, it would have a clean and defensible basis to pause performance.
Same event, opposite outcome, decided entirely by drafting done years earlier.
Common mistakes
- Relying on "acts of God" without listing pandemics and government action.
- Assuming higher costs qualify. They do not.
- Omitting the notice and mitigation requirements, whose absence can defeat an otherwise good claim.
- Providing no exit right if the disruption drags on indefinitely.
- Confusing force majeure with frustration. Where you have an express clause, the clause governs.
A drafting checklist
- List specific events, then add the catch-all after them.
- Expressly include epidemics, pandemics and government action.
- Require the event to genuinely prevent performance rather than burden it.
- Add notice and a duty to mitigate.
- State the consequences: suspension, time extension, and termination after a set period.
- Exclude mere economic hardship, to block opportunistic claims.
Frequently asked questions
Does a pandemic count as force majeure in India? Only if your clause covers it. Courts will not readily read "pandemic" into "acts of God", so name epidemics and government action expressly.
Can I invoke it because costs went up? No. Indian courts have held that increased cost or reduced profit is not force majeure. The event must genuinely prevent performance.
What if my contract has no force majeure clause? You may rely on frustration under Section 56, but only where performance became genuinely impossible or unlawful.
What must I do to invoke the clause? Give prompt notice as the clause requires, and take reasonable steps to mitigate.
Can force majeure end a contract? Yes, where the clause provides a right to terminate once the event continues beyond a defined period.
Can the other side dispute my notice? Yes, and they usually do. That is why the notice should state which listed event applies and how it prevents performance, rather than simply asserting force majeure.