Summary. A force majeure claim is won or lost on the notice and the record, not on the doctrine. Notice provisions are treated as conditions to relief, the deadlines are short, and the party claiming excuse bears the burden of showing the enumerated event actually caused the failure and that it mitigated. This checklist covers the first forty-eight hours — read the notice provision before the force majeure clause, identify precisely which obligations are affected, and send a compliant notice — then the weeks that follow, where visible mitigation, a defensible allocation methodology, and a contemporaneous file determine whether the claim survives.

What this checklist is for. Declaring or responding to force majeure. For the doctrine, see Force Majeure, Impracticability, and Frustration of Purpose.

Phase 1 — First forty-eight hours, declaring party

  • Pull the contract and read the notice provision first. It has a clock, a required method, a required recipient, and frequently a required content. Missing it can forfeit relief the clause would otherwise provide.
  • Read the force majeure clause word by word, comparing the enumerated events to what actually happened.
  • Identify the causation standard: "prevents" (impossibility), "hinders" or "delays" (substantial impediment), or "materially and adversely affects." The word decides the case.
  • Determine whether the clause's catch-all is limited by ejusdem generis or is expressly stated to apply "whether or not similar to the foregoing and whether or not foreseeable."
  • Determine whether the clause excludes economic hardship, market changes, cost increases, or the party's own financial condition.
  • Identify precisely which obligations are affected and which are not. Partial excuse is a real remedy and an overbroad claim destroys credibility.
  • Check whether payment obligations are addressed. Absent express language, courts generally hold that paying money is never impossible.
  • Confirm whether the clause treats notice as a condition precedent and whether relief runs from the event or from the notice.
  • Open a contemporaneous file documenting the event, its effects, and every mitigation step. Assume it will be produced.

Phase 2 — The notice itself

  • Send it to the address and by the method the notice provision specifies, including any copy-to-counsel requirement, and keep proof of delivery.
  • Identify the contract by date and parties.
  • Identify the event with specificity, and the date it began.
  • Identify the enumerated provision relied on, quoting the language.
  • Explain the causal connection between the event and the specific obligations affected.
  • List the affected obligations and state expressly which obligations the party will continue to perform.
  • State the expected duration or, if unknown, say so and commit to updates on a stated cadence.
  • Describe the mitigation underway.
  • Reserve all rights, including rights under the contract and under applicable law, and state that the notice is not a waiver or a repudiation.
  • Request the counterparty's acknowledgment.
  • Where goods are involved, satisfy the UCC § 2-615(c) seasonable notice requirement and, if allocating, include the estimated quota.

Phase 3 — Mitigation, in the weeks that follow

  • Solicit alternative sources of supply, materials, transportation, or labor, and keep the quotes and the rejections.
  • Investigate alternative methods of performance. UCC § 2-614 requires a commercially reasonable substitute where the agreed facilities become unavailable, and a commercially substantial substitute means of payment where the agreed means fails.
  • Evaluate expedited or premium-cost options and document the analysis, including why an option was rejected.
  • Do not prioritize other customers or affiliates without a documented, consistent methodology.
  • Communicate with the counterparty on a regular schedule. Counterparties who are kept informed settle; those who learn of a problem from a missed shipment litigate.
  • Update the notice as circumstances change, including when the event ends.
  • Record everything contemporaneously. A mitigation file created after a dispute begins is worth very little.

Phase 4 — Allocation among customers

  • Adopt a written allocation methodology before allocating, and date it.
  • Use historical purchase volumes over a defined period as the primary basis — the most common and most defensible approach.
  • Apply it consistently to all customers, including affiliates and internal requirements.
  • Do not favor spot-market buyers paying higher prices. This is the allegation that is easiest to make and hardest to defend.
  • Document the methodology, the calculation, and the approval.
  • Give the § 2-615(c) notice with the estimated quota, which starts the buyer's election period.
  • Note that under UCC § 2-616 the buyer has thirty days to terminate as to affected deliveries or to accept the allocation, after which the contract lapses as to those deliveries.

Phase 5 — Receiving a declaration

  • Do not accept it at face value and do not reject it reflexively.
  • Test the clause: is the claimed event enumerated or within a properly drafted catch-all? Does the causation standard fit what happened?
  • Test causation in fact. Ask for specifics — which facility, which input, which government order — and ask what the party's position was before the event. A supplier already in default or already short on capacity has a weak claim, and it is provable.
  • Test mitigation. Demand documentation of the alternatives pursued.
  • Ask how the party allocated among customers, and on what basis.
  • Check whether the notice complied with the provision, and preserve the objection in writing if it did not.
  • Make your § 2-616 election within thirty days if goods are involved.
  • Evaluate cover under UCC § 2-712 and document the substitute purchase carefully — reasonableness and good faith are the elements.
  • Watch the termination trigger. If the clause permits termination after a stated continuation period, calendar it; continuing to perform past the trigger may waive it.
  • Assess your own downstream obligations immediately and give your own notices where a chain of contracts is affected.
  • Do not agree to a price increase or schedule change casually; document any accommodation as temporary, without prejudice, and not a course of dealing.

Phase 6 — Adjacent steps

  • Check insurance. Business interruption, contingent business interruption (covering a supplier's loss), trade disruption, and political risk policies may respond, and notice deadlines are short.
  • Check upstream. If your supplier declared force majeure on you, evaluate its claim on these same standards and preserve your rights.
  • Consider a standstill or interim agreement preserving both parties' positions while the disruption resolves, with tolling of limitations periods.
  • Where the relationship matters, propose a commercial accommodation — a revised schedule, a shared cost, a partial performance — documented as a one-time arrangement.
  • After the event, revisit the clause for the next contract: enumerate what actually happened, address payment obligations, permit proportional excuse, require allocation, and grant termination rights on prolonged events.

Common mistakes

  1. Reading the force majeure clause and not the notice provision, and missing the deadline that governs relief.
  2. A vague notice referring to "current circumstances" without identifying the event, the provision, or the affected obligations.
  3. Claiming excuse for everything, including obligations the event did not affect.
  4. Assuming payment obligations are excused when the clause is silent.
  5. No contemporaneous mitigation file, so the record is reconstructed later.
  6. Allocating by relationship or by price rather than by a documented methodology.
  7. Missing the § 2-616 thirty-day election as a buyer.
  8. Continuing to perform past a termination trigger and waiving it.
  9. Accepting a supplier's declaration without asking what its position was before the event.
  10. Never revising the clause afterward, and facing the next disruption with the same language.

Primary authority

Related

This checklist is educational and not legal advice. Force majeure clauses are interpreted under the governing law chosen by the contract, and states differ on impracticability, frustration, and the effect of foreseeability. Consult qualified commercial counsel before declaring or responding to a force majeure event.