Force Majeure After 2025: New Precedent Every Attorney Must Know

Force Majeure After 2025: New Precedent Every Attorney Must Know

The COVID-19 pandemic fundamentally reshaped the law of force majeure. But the real wave of appellate decisions—and the most consequential shifts in common law interpretation—are only now crystallizing in the post-2025 landscape. For transactional attorneys drafting commercial contracts and litigators advising on breach claims, the new precedents demand immediate attention.

Gone are the days when a boilerplate “act of God” clause sufficed. Courts are now parsing force majeure provisions with surgical precision, and the outcomes are surprising even seasoned practitioners. Below are the three most critical developments from the last 18 months, with practical examples you can apply today.

1. The “Causation Cascade” Standard

The most significant doctrinal shift is the adoption of the “causation cascade” test by the Second, Seventh, and Ninth Circuits. Under this standard, a party invoking force majeure must prove not only that an enumerated event occurred, but also that the event was the proximate cause of the nonperformance—and that no intervening, foreseeable event broke the causal chain.

Practical example: In Coastal Energy v. GulfPort Terminals (2024), a supplier invoked a force majeure clause citing a hurricane that damaged its primary shipping dock. The court denied relief because the supplier had an alternative, undamaged dock available—and its failure to use it was an intervening cause. The clause’s “best efforts to mitigate” language was read as an independent obligation, not a mere suggestion.

“Force majeure is not a magic wand. It is a narrow shield, and the bearer must show the shield was the only defense available.” — Judge Torres, dissenting in part, Coastal Energy

Drafting tip: Add a sentence requiring the invoking party to prove that no reasonably available alternative performance (including third-party substitutes) existed. This shifts the burden and reduces litigation risk.

2. “Pandemic” Is Now a Distinct Category—But Not a Blanket Excuse

Post-2025, most jurisdictions now treat “pandemic” or “public health emergency” as a distinct force majeure category, separate from “act of God” or “government action.” However, the mere occurrence of a pandemic does not excuse performance. Courts now require the invoking party to show specific, direct governmental orders that made performance illegal or impossible—not merely economically impractical.

Practical example: In BioMed Supply v. State Health Systems (2025), a medical device manufacturer cited its “pandemic” force majeure clause after supply chain disruptions delayed delivery by six weeks. The court ruled against the manufacturer because no government order prohibited production or shipment; the disruptions were market-driven. The clause required a “direct governmental prohibition,” and the manufacturer’s own logistics failures were not force majeure.

Key takeaway: Draft pandemic clauses with explicit triggers: “any federal, state, or local order that directly prohibits the performance of this Agreement.” Avoid vague language like “disruption” or “interruption.”

3. The Rise of “Foreseeability” as a Gatekeeper

Perhaps the most aggressive new precedent comes from the Delaware Court of Chancery, which in Vertex Construction v. Tower Holdings (2025) held that a force majeure event must have been unforeseeable at the time of contracting. If the risk was known or reasonably predictable, the party must have allocated that risk elsewhere—or bear the loss.

Practical example: A commercial lease contained a force majeure clause covering “any governmental restriction.” The tenant, a restaurant chain, sought relief after a city enacted a new zoning ordinance that limited outdoor dining. The court denied relief because the tenant knew the city was considering zoning changes when it signed the lease. The risk was foreseeable and should have been addressed in a specific covenant, not a general force majeure clause.

“Force majeure is for the extraordinary, not the inconvenient. If a party could have negotiated a specific term to address the risk, it must do so.” — Chancellor McCormick, Vertex Construction

Drafting tip: Include a “no-foreseeability” waiver clause: “The parties acknowledge that the events listed herein are not exhaustive, and no event shall be deemed force majeure if it was reasonably foreseeable by the invoking party at the time of execution.” This may seem harsh, but it prevents creative post-hoc arguments.

What This Means for Your Practice

For transactional attorneys, the post-2025 landscape demands a complete audit of existing force majeure clauses. Every clause should now include:

• Explicit causation language requiring the event to be the direct and proximate cause of nonperformance.
• Mitigation obligations with defined standards (e.g., “commercially reasonable efforts” or “best efforts”).
• Specific triggers for pandemics, government orders, and supply chain disruptions.
• Foreseeability carve-outs for known risks.
• Burden of proof allocation to the invoking party.

For litigators, the new precedent is a double-edged sword. The causation cascade and foreseeability tests offer powerful defenses against specious force majeure claims—but they also raise the bar for legitimate claims. Discovery will now focus on internal risk assessments, alternative performance options, and the precise timing of governmental orders.

The era of the “catch-all” force majeure clause is over. Courts are demanding specificity, causation, and good faith. The firms that adapt their drafting and litigation strategies to these new precedents will protect their clients—and themselves—from the next wave of disruption.