Insight
August 11, 2026
A contract is a written agreement between two or more parties that creates mutual rights and obligations, regulates commercial relationships and provides a mechanism for resolving disputes when they arise.
In essence, contracts are drafted to create certainty. It ensures that each party understands what is required of them, what rights they have and the consequences of failing to comply with the obligations. A well drafted contract also anticipates potential disputes and risks that may arise during the course of the relationship, establishing clear procedures for addressing them and in doing so, it reduces uncertainty and supports ongoing good faith dealings between the parties.
While careful planning can mitigate many risks, it cannot anticipate every eventuality. Unforeseen events that are beyond the control of the contracting parties and could not have been reasonably have been foreseen or prevented tend do occur. These events significantly hinder, delay or even render contractual performance impossible.
The COVID-19 pandemic illustrated this reality. Government imposed lock downs and restrictions, travel bans, labour shortages, and mandatory business closures had a significant financial impact on businesses across industries.
Many parties found themselves unable to fulfil their contractual obligations through no fault of their own, resulting in uncertainty, commercial disputes and significant financial loss.
What is force majeure?
Force majeure meaning “superior force” refers to unforeseeable, extraordinary events that prevent, hinder, or delay the performance of contractual obligations.
In South African law, force majeure is not automatically implied or included in contracts. Rather, it is a contractual mechanism that applies only if the parties have expressly included, a force majeure clause in their agreement. Without such a provision, contracting parties may struggle to obtain relief from their contractual obligations when unforeseen, extraordinary events occur.
The impact and significance of a force majeure clause
A force majeure clause is intended to allocate risk by identifying the types of unforeseen events that may excuse, suspend or delay contractual performance. It provides certainty by setting out the circumstances in which relief may be available together with procedural requirements that must be followed when such events arise. Depending on its wording, the clause may excuse contractual performance, entitle a party to an extension or provide other contractual remedies.
Force majeure events may include “Acts of God” such as earthquakes, hurricanes or other natural disasters, it may also extend to pandemics, epidemics or governmental imposed restrictions, war, civil unrest etc. Ultimately, the scope of protection depends entirely on the wording of the clause itself.
It is however important to appreciate that a force majeure clause does not provide a blanket excuse for non-performance merely because performance has become more expensive or inconvenient. The relevant event must have prevented performance altogether or materially delayed a party’s ability to perform its obligations; this may include travel bans, mandatory business closures and other restricts that directly affect contractual performance.
Prior to the COVID-19 pandemic, many contracting parties regarded force majeure as a standard boilerplate provision requiring little attention. The pandemic demonstrated just how important these clauses can become when unexpected events arise.
There is accordingly no universal force majeure clause. These clauses are often adapted to suit the needs of a particular transaction and are interpreted in the context of the agreement as a whole. The responsibility therefore rests on the parties, and particularly those drafting the agreement, to ensure that the clause clearly identifies the relevant triggering events, the consequences of those events, and the relief that may be available.
How COVID-19 changed the conversation
What was once regarded as a remote possibility quickly became a global reality, disrupting industries, halting commerce and exposing the limitations of many existing contractual provisions. The Pandemic highlighted the importance of ensuring that contracts adequately address events that may significantly affect contractual performance.
To put it into perspective, construction projects were delayed or suspended due to lockdown measures, resulting in labour shortages and interruptions in the supply of building materials.
In response, businesses turned to their contracts and sought to invoke force majeure clauses to obtain relief from their obligations. However, the success of those claims depended on the precise wording of the respective provision.
For some businesses, the difficulty was that their contracts did not specifically include pandemics, epidemics or government imposed lock downs as qualifying events. The experience reinforced the importance of protective contractual drafting and demonstrated that provisions once regarded as standard boilerplate clauses may have significant commercial consequences.
One size does not fit all
Although force majeure clauses serve the common purpose of allocating risk arising from unforeseen events, the universal boilerplate clause may not be appropriate for every commercial relationship.
Different types of agreements present different commercial risks and operational realities. In construction contracts, for example, force majeure clauses often need to address weather conditions, labour and material shortages, permitting delays, government-imposed interruptions, and civil unrest. Supplier agreements, on the other hand, may require more detailed provisions dealing with manufacturing delays, transportation disruptions, import and export restrictions and supply chain interruptions.
These examples demonstrate that the effectiveness of a force majeure clause depends not only on the clause itself but also the nature and context of the agreement. As a clause appropriate for a construction agreement may be wholly inadequate in a service level agreement, just as a provision suitable for a commercial lease may fail to address the risks associated with a manufacturing agreement.
Prevention is better than litigation
Parties should resist the temptation to adopt standard provisions or precedents without careful consideration. Instead, force majeure clauses should be tailored to the specific agreement, taking into account the foreseeable risks, the parties' commercial objectives, and the practical consequences of interruptions to performance.
As recent events have demonstrated, unforeseen circumstances can significantly disrupt contractual performance. It is therefore essential for parties to consider how those risks will be managed before they arise.
A force majeure clause may go unnoticed for most of the life of a contract, but when an extraordinary event occurs, it can become one of the most important provisions in the agreement.
Ultimately, investing time in tailoring force majeure provisions at the outset is far preferable to resolving costly disputes after the unexpected has occurred. Careful drafting today can provide greater certainty, allocate risk appropriately, and help businesses navigate uncertainty when circumstances change.
At Barnard Incorporated Attorneys, we assist clients with the drafting, review, and negotiation of commercial agreements, ensuring that key risk allocation provisions, including force majeure clauses, are carefully tailored to the nature of the transaction and the specific risks faced by the parties.
Whether you are negotiating a new agreement or reviewing an existing contract, our team can assist in identifying potential risks, clarifying contractual obligations, and ensuring that your interests are adequately protected before the agreement is concluded. As the COVID-19 pandemic demonstrated, a carefully drafted contract can provide certainty and help avoid costly disputes when the unexpected occurs.
