Negotiating Force Majeure Clauses as a Buyer

For years force majeure was the clause nobody read, a paragraph about acts of God near the back of the contract that never seemed to matter. The pandemic and the supply shocks that followed changed that. Buyers discovered that a broad force majeure clause is the mechanism a supplier uses to walk away from its delivery obligations without liability, precisely at the moment supply is hardest to replace. The clause decides who carries the cost of disruption, and the standard version carries it to you.

This is a commercial view of the clause. The drafting belongs with your legal team, but the position they defend is a procurement decision.

What the clause actually does

Force majeure excuses a party, almost always the supplier in practice, from performing when a defined event prevents it, and it does so without the usual liability for non-performance. The intent is fair: neither side should be punished for a genuine catastrophe outside anyone's control. The problem is the definition. A wide definition lets the supplier classify events that are really its own supply-chain management as force majeure, so a sub-supplier's failure, a labour dispute in its own workforce, or a spike in its input costs becomes your problem, dressed up as an act of God.

Where the buyer is exposed

The exposure has three parts. A broad definition of what counts as force majeure. An absence of any obligation on the supplier to mitigate or work around the event. And no exit for you if the disruption drags on. Put together, they mean the supplier can stop delivering, do little to fix it, keep the contract alive so you cannot source elsewhere, and owe you nothing while your own operations suffer. Each part is negotiable, and each one matters more the more critical the supply is.

What a strong buyer position looks like

Start with the definition. Narrow it to events that are genuinely unforeseeable and unavoidable, and explicitly exclude the ordinary risks of running a business: the failure of the supplier's own sub-suppliers, increases in their costs, and labour disputes within their own workforce. A supplier's inability to manage its supply chain is not a force of nature, and the definition should say so.

Then attach duties to the event rather than treating it as a free pass. Require the supplier to give prompt notice, to keep you updated, and above all to use reasonable efforts to mitigate, which means finding alternative sources, alternative routes, and prioritising you among their customers where they can. Exclude payment obligations from force majeure entirely, since nothing about a disruption prevents money from moving.

Most importantly, build in an exit. If the event continues beyond a defined period, thirty or sixty days depending on how critical the supply is, you should have the right to terminate without penalty and to source elsewhere in the meantime. Without that trigger, force majeure becomes a way to trap you in a contract that is not being performed. For critical supply, go further and require a business continuity plan and alternative-site commitments as part of the deal.

Where to trade

The aim is not to deny that force majeure exists, and pushing too far has a cost. If you narrow the clause to almost nothing, a cautious supplier will price the extra risk back in or resist the deal altogether. The productive fight is not about whether genuine catastrophes are excused, it is about the definition, the duty to mitigate, and your right to exit. Concede that real force majeure is shared misfortune, and hold the line on the parts that stop the supplier from turning ordinary risk into your loss.

Holding the position live

The predictable moment comes when disruption hits and the supplier invokes force majeure for something that is really their own supply problem. The groundwork for that moment is laid in the negotiation, when you argue that their sub-supplier failing is not a force of nature and that the clause needs a mitigation duty and an exit trigger. The supplier will call the clause standard and resist narrowing it, and holding your position calmly against that is a skill separate from knowing what the position should be. Voice2Evolve lets you rehearse that exchange out loud against a counterpart who defends the broad clause and pushes back the way a real supplier does, so the definition and the exit trigger you decided on survive the conversation where they are contested. Work out the position with your team, then practise defending it before the disruption makes it urgent.