Procurement Glossary
Force majeure: definition, contractual clauses and application in Procurement
November 19, 2025
Force majeure refers to exceptional circumstances or force majeure that make it impossible or significantly more difficult to fulfill a contract. In Procurement , such clauses are essential to cover delivery risks in the event of unforeseeable events such as natural disasters, pandemics or political crises. Find out below what force majeure means, how corresponding contractual clauses are structured and what risks need to be considered.
Key Facts
- Force majeure releases contracting parties from performance obligations in the event of force majeure
- Typical events: Natural disasters, wars, pandemics, strikes or government measures
- Clauses must define specific events and regulate reporting obligations
- Distinction between temporary suspension and permanent contract termination
- Burden of proof lies with the invoking contractual partner
Contents
Classification & purpose of Force Majeure
Force majeure clauses create legal clarity for exceptional situations and protect both contracting parties from unreasonable risks.
Legal basis and delimitation
Force majeure includes events that are beyond the control of the contracting parties and were not foreseeable. In German law, this corresponds to the concept of force majeure in accordance with Section 275 BGB. The clause must clearly define which events are covered and which legal consequences arise.
Force majeure vs. warranty
While warranty claims apply in the event of defects, force majeure refers to external events that cannot be influenced. The distinction is important for the distribution of risk in contract management.
Importance of force majeure in Procurement
Buyers use force majeure clauses to safeguard critical supply chains. They enable flexible responses to crises and prevent disproportionate claims for damages in the event of delivery failures through no fault of their own.
Structure, contents and application
An effective force majeure clause requires precise definitions, clear procedural rules and appropriate legal consequences for all parties involved.
Event catalog and definitions
The clause should list specific events: natural disasters, wars, terrorist attacks, pandemics, strikes or government measures. A general clause for "unforeseeable circumstances" completes the list. It is important to distinguish these from normal business risks such as market changes or financial difficulties.
Reporting and verification obligations
Contracts must define reporting deadlines, usually 5-30 days after the occurrence of the event. The affected partner must document the event, provide evidence of its effects and demonstrate countermeasures. Contract negotiations should take realistic deadlines into account.
Legal consequences and contract adjustment
Force majeure can lead to temporary suspension or permanent termination. In the event of prolonged disruptions, termination rights for good cause should be provided for. Alternative solutions such as partial deliveries or replacement products should be examined.
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KPIs and verification criteria
The evaluation of force majeure events requires objective criteria and measurable indicators for a fair assessment.
Event evaluation and causality
Central KPIs include the unpredictability of the event, its exceptional nature and the direct causality to the inability to perform. Statistical probabilities and historical comparative data support the objective assessment. The proportionality between event and impact must be demonstrable.
Damage quantification and documentation
Measurable criteria are production losses in percent, delivery delays in days and additional costs in euros. Documentation must be provided promptly and include external confirmations such as official certificates or media reports. Service credits can serve as a compensation mechanism.
Recovery time and alternative measures
KPIs for evaluating recovery efforts include time to normalization, cost of alternative solutions and success rate of countermeasures. These metrics help to assess whether all reasonable efforts have been made.
Contractual risks and protection in the event of force majeure
Inadequately worded force majeure clauses can lead to legal disputes and financial losses.
Risks of abuse and burden of proof
Clauses that are drafted too broadly allow abuse in the event of normal business difficulties. The burden of proof for the existence of a force majeure event lies with the invoking party. Unclear definitions lead to costly legal disputes about the applicability of the clause.
Exclusion of liability and compensation
Force majeure clauses may contain limitations of liability, but these do not cover all damages. Consequential damage to third parties or lost profits are often not taken into account. A balanced distribution of risk is crucial for long-term business relationships.
Supply chain disruptions and alternative strategies
Unilateral force majeure clauses in favor of the supplier can put buyers at a disadvantage. Framework agreements should provide for replacement suppliers and contingency plans in order to avoid supply bottlenecks.
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Practical example
An automotive supplier is unable to deliver its electronic components due to an earthquake in Japan. The force majeure clause in the supply contract defines natural disasters as a covered event. The supplier reports the failure within 10 days, submits certificates from the authorities and shows alternative production sites. At the same time, the buyer activates a second supplier from Europe to maintain production.
- Immediate notification with complete documentation
- Activation of emergency plans and replacement suppliers
- Regular updates on recovery progress
Current developments and effects
The COVID-19 pandemic and geopolitical tensions have brought force majeure clauses more into focus and changed their structure.
Pandemic clauses and extended definitions
Many companies have added specific pandemic regulations to their contracts. These include quarantine measures, border closures and production stops. Case law has shown that general force majeure clauses do not automatically cover pandemics.
Digitalization and AI-supported risk analysis
Modern digital contract management systems enable better monitoring of force majeure events. AI tools analyze risk indicators and provide early warning of potential disruptions in the supply chain.
ESG aspects and sustainability
Climate change-related events are increasingly being included in force majeure clauses. Companies are increasingly taking circular economy principles into account when designing contingency plans and alternative procurement strategies.
Conclusion
Force majeure clauses are indispensable instruments for risk protection in procurement, but require precise wording and a balanced design. The COVID-19 pandemic has shown how important well thought-out contingency arrangements are for resilient supply chains. Modern contract design should combine specific event definitions, clear procedural rules and fair risk allocation. Successful buyers use force majeure clauses as part of a comprehensive risk management strategy with alternative suppliers and digital monitoring systems.
FAQ
What distinguishes force majeure from normal delivery problems?
Force majeure only includes extraordinary, unforeseeable events beyond the control of the contracting parties. Normal business risks such as capacity bottlenecks, financial difficulties or market changes are not covered. The event must be objectively unavoidable and extraordinary.
How long can a supplier invoke force majeure?
The duration depends on the terms of the contract. Typical periods are 30-90 days, after which termination rights arise. The supplier must continuously prove that the event persists and that countermeasures are being taken. Permanent appeal without recovery efforts is inadmissible.
What obligations to provide evidence exist in the case of force majeure?
The appealing partner must document the event, provide evidence of its direct impact and demonstrate countermeasures. Official confirmations, media reports or expert opinions are often required. The report must be made immediately, usually within 5-30 days of the event occurring.
Can force majeure clauses be designed unilaterally?
Legally possible, but not recommended. One-sided clauses in favor of one party may be ineffective in a GTC review. Balanced regulations that protect both parties are more sustainable and promote long-term business relationships. Mutual rights and obligations should be distributed fairly.
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