How to Read a Force Majeure Clause Before You Sign

You are about to sign a warehouse MSA — the master services agreement sitting over later warehouse orders. Before Friday: tick named events, test prevent versus delay and whether payment is excused, diary the notice clock, then see who may terminate after 60–90 days. Keep, name-events, or escalate. The heading is not a shield.

On 2 September 2026, Ines — ops at a 28-person UK logistics firm — opens a twelve-page warehouse MSA. Schedule 8 exhibit — the attached force majeure schedule — lists flood, fire, war, strike and act of God, and skips pandemic, cyber-attack, ransomware and government order. The verb is “prevented or delayed”; clause 18.3 keeps the Customer paying; notice is five Business Days “provided that”; after ninety days only the Supplier may terminate. Typical mistake: treating the heading as a magic shield while the board wants Friday signature.

In England and Wales force majeure is not implied. LexisNexis (updated 28 July 2026) and Gowling WLG (26 March 2026) both say the words decide. Solicitors Journal (9 September 2025) tells customers to name cyber-attacks. RTI Ltd v MUR Shipping BV [2024] UKSC 18: “reasonable endeavours” do not force non-contractual performance. Ines can keep paying for 90 days with no exit of her own.

Disclaimer: Checkory provides AI support, not legal advice. Consult a qualified lawyer for binding decisions.

How do you tell if a closed list covers pandemic, cyber, or a government order?

Read the list before you trust the heading. In England and Wales a closed list that omits pandemic, cyber-attack and government order will not stretch to those events because the title says Force Majeure. Tick every named row. Missing cyber on a logistics MSA is a pause, not a shrug.

A named epidemic covers Covid-19. A flood-fire-war list that omits epidemic is hard to stretch. Pinsent Masons OUT-LAW (2020): a catch-all is usually read broadly. Tandrin Aviation (2010) shows a catch-all will not swallow a funding crash on a $31.75m jet. For example, “malicious damage” may not reach ransomware. Do: name pandemic, cyber-attack and government order. Do not: accept “ransomware is an act of God.”

If they invoke force majeure, do you still pay?

“Prevented” means physically or legally impossible — dearer or less profitable is not enough. “Hindered” is lesser but still more than inconvenience. “Delayed” is the easiest for a supplier to hit. Separately, find the payment sentence. Many warehouse drafts say the Customer keeps paying.

Ines’s “prevented or delayed” line is supplier-friendly. Gowling: well-drafted clauses allocate whether charges run. Litasco [2023] EWHC 2866 treats a debt holiday with “particular circumspection.” WFW (8 April 2026): cost spikes rarely qualify; relief is time, not money. In practice they cannot treat force majeure as a holiday from your invoice unless the clause says so. Do: unused space is billed only if they can still provide it. Do not: sign “Customer pays during any FM Event.”

What does a missed notice clock do to relief?

Words “provided that” notice is given within N days are the language of a condition precedent. Miss the clock and relief can die even when the event is real. There is no implied “you were not prejudiced” rescue. Diary the days, the start trigger, the address and the method.

Bristows (25 August 2026) on ADM v Inerco: “provided that” within seven days is “unmistakeably” a condition precedent. WFW: notice shortfalls can be fatal. Check Business Days, who is served, and email versus paper. Five Business Days to a postal address with no email fallback is a hidden time-bar. Do: add a workable method and a diary. Do not: assume a late letter is fine because “they already knew.”

Does harder or dearer performance count as force majeure?

The claiming party must show the event caused the non-performance, sat beyond control, and left no reasonable steps. Reasonable steps can include a dearer warehouse or route. A cost spike is not force majeure. Pair the mitigation duty with an express hardship carve-out.

RTI: reasonable endeavours do not force a rewritten deal unless the clause says so. Classic Maritime [2019] EWCA Civ 1102: a dam burst does not rescue a party who was not going to perform anyway. Tandrin: economic collapse is not force majeure without the clearest words. UKLegalGuides (September 2026) carves out lack of funds. This is not the vendor insurance checklist — cyber cover is a different paper. Do: keep a hardship exclusion and a mitigation record. Do not: let “beyond reasonable control” become a price-rise clause.

After 60–90 days, who may terminate — or do you sit in limbo?

A longstop is the dated right to walk if the event lasts. Commercial drafts often use 60–90 days; the ICC 2020 model uses 120 days for either party. No dated exit is paid limbo. A supplier-only 90-day right plus charges that continue is a one-way trap.

UKLegalGuides wants a defined limit and a right for either party to terminate. The ICC clause (March 2020) lets either side exit after 120 days — a model, not a statute. Ines’s clause: 90 days, Supplier only, charges still running. That is force majeure termination after longstop written for them. Assignment or a sale of the 3PL is a different fight — use the assignment and change-of-control checklist, not this clause. Do: keep a mutual dated exit. Do not: treat “90 days is market” as protection.

Keep, name-events, or escalate: the one-page log

Fill a one-page log before anyone talks Friday. Write whether the list is closed or “including but not limited to”, whether pandemic, cyber and government order are named, the verb, whether payment continues, notice days and “provided that”, mitigation and hardship, longstop days and who may exit, mutual yes or no, then keep, name-events or escalate.

Success bar: point to one clause that would pause signature, and say why a missing cyber row is not “covered by act of God.” Workflow: read the list → verb + payment → notice clock → mitigation / hardship → longstop + who exits → keep or name-events or escalate. After the log, upload the same PDF for a first-pass — a machine extract of clause headings before anyone reads every page.