Introduction
The foundation of commercial law rests on the principle of pacta sunt servanda which means “agreements must be kept.” However, in today’s volatile business environment, even the most carefully planned commercial arrangements can be disrupted by unforeseen events. From pandemics and political unrest to cyber attacks and natural disasters, these disruptions often raise a critical legal question: Who bears responsibility when the performance of a contract becomes impossible?
The answer to this question lies in a key contractual provision often tucked away near the end of agreements, “Force Majeure.” This clause serves as a legal safety valve, excusing performance when extraordinary circumstances render contractual obligations impossible or impracticable. Understanding and properly drafting this clause has become more essential than ever, particularly in light of global crises such as COVID-19, Cyber attacks and geopolitical instability.
The COVID-19 pandemic, global supply chain disruption, cyber attacks and geopolitical tensions have all highlighted one reality: business operations can be interrupted by events beyond human control. In such circumstances, the doctrine of force majeure becomes central to commercial relationships.
This article examines the concept of force majeure, its legal foundation under Nigerian law, its importance in ensuring business continuity and practical steps that can be taken to navigate unpredictability in today’s volatile global economy.
Understanding the Concept of Force Majeure
The term Force Majeure originates from French, meaning “superior force.”It refers to unforeseeable events beyond the reasonable control of the contracting parties which prevents one or both from fulfilling their contractual duties[1]. Black’s Law dictionary[2] defines the term as an event that can neither be anticipated nor controlled, encompassing acts of nature, such as natural disasters, as well as human actions, such as wars.
Force majeure is not a creature of common law, it exists purely by contractual agreement. This clause is not automatically implied in contracts, in essence, parties must expressly include it in their contract for it to apply. The clause allows parties to rescind a contract upon the occurrence of certain specified events beyond the control of parties making performance unrealistic and impossible[3]. Its primary purpose is to allocate risk and protect parties from liability for non-performance caused by events no one could have reasonably anticipated or prevented. Without such clause, parties may have to rely on other legal principles such as frustration of contract. While both concepts deal with supervening events, frustration automatically discharges a contract, whereas force majeure provides temporary reprieve, allowing the contract to resume when the event ends[4].
Common examples of Force Majeure events include[5]:
- Natural disasters
- Acts of war, terrorism, or civil unrest
- Government orders, embargoes, or legal prohibitions
- Epidemics or pandemics
- Power failures or supply chain breakdowns
- Strikes or industrial disputes
The Legal Effect of Force Majeure
When a Force Majeure event occurs, the affected party may be temporarily excused from performing certain obligations, given an extension of time to perform, or permitted to terminate the contract if the disruption continues beyond a defined period.
However, Force Majeure does not automatically relieve a party of all obligations. Courts often interpret the clause strictly, focusing on the exact language of the contract. The party invoking Force Majeure must prove that:
- The event falls within the scope of the clause;
- The event was beyond its control; and
- The event directly affected its ability to perform the contract.[6]
Failure to meet these conditions can invalidate the claim of the party relying on the clause.
Because force majeure clauses are contractual rather than statutory, their interpretation depends on the wording used by the parties. Courts generally adopt a strict interpretation to determine whether the event falls within the specific language of the clause in the contract agreement.
Notice and Mitigation Obligations
Most Force Majeure clauses impose procedural duties on the affected party. These typically include the obligation to notify the other party of the nature of the event within a specified period, its impact on performance and reasonable steps that has been taken to mitigate the effects of the event[7]. Failure to comply with these procedural requirements can invalidate a Force Majeure claim.
Essential Features of a Force Majeure Clause
The effectiveness of a Force Majeure clause depends entirely on its drafting. Key considerations include[8]:
- Comprehensive Definition of Events: The clause should cover events such as natural disasters, pandemics, cyber incidents, supply chain failures, regulatory actions and other events beyond human control.
- Notice Requirements: It states how and when the affected party must notify the other party of the event.
- Duration and Termination Provisions: It clarifies what happens if the event persists beyond a certain period.
- Mitigation Obligation: Require both parties to take reasonable steps to reduce the impact of the event.
- Partial Performance: Address whether partial fulfillment of obligations is permissible.
- Business Continuity Integration: Encourage the inclusion of contingency and recovery plans.
These elements ensure that the clause operates predictably, reduces disputes over its interpretation, and enhances contractual resilience in the face of unexpected disruptions.
It is imperative for businesses to review existing contracts and incorporate comprehensive force majeure provisions that reflect contemporary realities and emerging risks. Best practices include:
- Incorporating pandemics and cyber incidentsas qualifying events.
- Defining procedures for remote performanceor alternative delivery methods.
- Linking force majeure to business continuity plans, ensuring operational processes can adapt during disruption.
- Periodic reviewof clauses to align with changing regulatory or market conditions.
In an era of increasing uncertainty, force majeure clause ensures the following:
- Predictability: Parties know what happens if unforeseen disruptions occur.
- Risk allocation: Responsibility for losses is distributed fairly.
- Flexibility: Operations can resume once the event subsides without terminating the entire contract.
- Legal protection: Businesses can avoid liability for non-performance where circumstances are genuinely beyond control.
Force Majeure vs. Business Continuity
While Force Majeure clauses protect parties from legal liability, business continuity focuses on maintaining operational resilience. Business continuity is a proactive strategy that ensures an organization can continue critical operations during and after a disruptive event[9]. The Business continuity plan focuses on business functions which are considered essential and the steps an organization takes to protect those essential business functions when an incident occurs. A company that relies solely on force majeure clauses risks operational paralysis, even if legally protected.
Emerging Risks and Modern Realities
The modern commercial landscape has introduced new categories of risk, cyber attacks, climate-related disasters, and data breach can all significantly disrupt contractual performance. These risk challenges the traditional notions of what constitutes a “Force Majeure” event.
For instance, a ransom ware attack that paralyzes a company’s operations could be as disruptive as a natural disaster. Similarly, the growing frequency of climate-related events such as floods, heat waves and wildfires challenges the assumption that certain disasters are unforeseeable. As such, businesses and legal practitioners must continuously update Force Majeure clauses to reflect evolving realities.
Conclusion
Force Majeure and business continuity are two sides of the same coin: one offers legal protection, the other ensures practical survival. While Force Majeure clauses relieve parties from liability when extraordinary events prevent performance, business continuity ensures that operations can resume swiftly and effectively in the aftermath.
In an era of increasing uncertainty, the ability to withstand disruption has become a defining feature of sustainable business practice. Companies that integrate robust Force Majeure clauses with proactive continuity planning not only protect their legal interests but also build resilience, trust, and long-term competitive advantage. A well-crafted force majeure clause, combined with a sound business continuity plan, can make the difference between temporary suspension and total collapse of commercial operations. In essence, while the law cannot prevent unforeseen events, it can equip businesses to withstand them. Force majeure is not just a legal safeguard; it’s a strategic tool for business survival.
[1] S. Jones, Force Majeure and Business Continuity in Commercial Agreement: Lessons from recent global disruptions. Available at < https://ts-p.co.uk/insights/force-majeure-and-business-continuity-in-commercial-agreements-lessons-from-recent-global-disruptions/> accessed October 29, 2025
[2] 11th Edition, Thomson West (2019)
[3] Globe Spinning Mills (nig) plc v. Reliance Textile Industries Ltd (2017) LPELR-41433(CA)
[4]Covid-19 pandemic and the doctrine of force majeure and frustration of contract: impact on commercial contracts, Giwa Osagie& co. Available at https://www.giwa-osagie.com/covid-19-pandemic-and-the-doctrines-of-force-majeure-and-frustration-of-contract-impact-on-commercial-contracts/ accessed October 29, 2025
[5] What is Force Majeure in Contracts, Icertis. Available at https://www.icertis.com/contracting-basics/what-is-force-majeure/ accessed October 30, 2025
[6] Supra
[7] Understanding Force Majeure: Its Application in in Commercial Contracts, AlaexanderJLO. Available at https://www.london-law.co.uk/force-majeure-commercial-contracts/ accessed October 29, 2025
[8] Understanding Force Majeure Clauses in Commercial Contracts, GetLaw. Available at https://getlaw.com.au/understanding-force-majeure-clauses-in-commercial-contracts/ accessed October 30, 2025
[9] ibid
Disclaimer: This article is intended for informational and educational purposes only and does not constitute legal advice. While every effort has been made to ensure the accuracy of the information presented, readers should consult a qualified legal professional for advice specific to their individual circumstances.