Cases of Force Majeure in 2026: How to Identify Them

Force majeure is one of the legal mechanisms most frequently invoked in times of economic and social uncertainty. In the face of the recent upheavals affecting our society, companies and individuals are regularly confronted with unforeseeable events liable to affect the performance of their contractual obligations. Understanding the criteria for identifying a case of force majeure is therefore essential in order to anticipate the legal and economic consequences of these exceptional situations.

The legal foundations of force majeure

Definition and development of the concept

Force majeure has its foundations in French civil law, where it constitutes a justification releasing the debtor from its obligation. This notion, progressively refined by the case law, makes it possible to exempt a contracting party wholly or partly from liability where the non-performance of its obligations results from an event with specific characteristics. The definition of the notion and its statutory conditions are presented, with examples, in our article on the definition of force majeure.

The development of the case law on this notion reflects its constant adaptation to contemporary economic and social realities. The French courts assess on a case-by-case basis whether there is a cause of force majeure. The Plenary Assembly of the Cour de cassation thus held that the debtor's illness, unforeseeable when the contract was concluded and irresistible in its performance, constituted a case of force majeure (Cour de cassation, Plenary Assembly, 14 April 2006, No. 02-11.168).

The applicable legal regime

Since Ordinance No. 2016-131 of 10 February 2016, contractual force majeure has been defined by Article 1218 of the French Civil Code: there is force majeure where an event beyond the debtor's control, which could not reasonably have been foreseen when the contract was concluded and whose effects cannot be avoided by appropriate measures, prevents the debtor from performing its obligation. This general regime may be supplemented by specific sectoral provisions, which requires an analysis of the texts applicable to the field of activity concerned.

Commercial contracts frequently include specific force majeure clauses, the validity and scope of which must be assessed in the light of the general principles of law. These contractual provisions may extend or restrict the statutory definition, subject to compliance with public policy. Thus, a delivery contract may provide that exceptional bad weather constitutes a case of force majeure.

The cumulative criteria for identification

An event beyond the debtor's control

The first criterion concerns the nature of the event. The earlier case law traditionally required it to be external. Article 1218 of the French Civil Code now refers to an event "beyond the debtor's control", and the Plenary Assembly had already accepted that an event specific to the debtor, namely illness, could constitute a case of force majeure (Cour de cassation, Plenary Assembly, 14 April 2006, No. 02-11.168). The event relied on must not originate in the conduct or decisions of the person relying on it: this condition excludes difficulties resulting from poor management, insufficient resources or defective strategic choices.

This criterion is applied strictly. The courts examine the chain of causation closely in order to determine whether the event was genuinely beyond the debtor's control. Pre-existing financial difficulties, even if aggravated by external circumstances, cannot constitute a case of force majeure. The Cour de cassation also holds that the debtor of an unperformed contractual obligation to pay a sum of money cannot be released from that obligation by relying on force majeure (Cour de cassation, Commercial Chamber, 16 September 2014, No. 13-20.306).

Unforeseeability when the contract was concluded

Unforeseeability is the second pillar in characterising force majeure. The event must have been unforeseeable at the time the contract was formed. This assessment is made in abstracto, by reference to the forecasts that a prudent and diligent contracting party placed in the same circumstances could reasonably have made.

French case law takes a nuanced approach to this criterion. It distinguishes absolute unforeseeability, extremely rare in practice, from relative unforeseeability, more commonly accepted. An event that was known but whose occurrence seemed highly improbable may thus satisfy this condition, Article 1218 referring to an event that "could not reasonably have been foreseen".

Developments in scientific and technical knowledge influence the assessment of unforeseeability. What may have seemed unforeseeable a few years ago can today be anticipated thanks to advances in modelling and forward-looking analysis. Thus, certain floods in areas identified as at risk may today lose their unforeseeable character.

The irresistibility of the event

The irresistible nature of the event completes the criteria for force majeure. Article 1218 of the French Civil Code defines it as an event whose effects cannot be avoided by appropriate measures and which prevents performance of the obligation. Irresistibility is not presumed; it must be demonstrated by the person relying on it.

The assessment of irresistibility takes account of the means reasonably available to the debtor. The courts examine whether alternative measures could have been implemented to maintain performance of the obligation. This analysis incorporates economic considerations, without however requiring the debtor to make disproportionate sacrifices.

The notion of irresistibility changes with the technical and organisational capacities of companies. Technological progress may make possible solutions that were not previously available, thereby altering the case law's assessment of this criterion.

Traditionally recognised events

Natural disasters

Natural disasters are the most obvious category of cases of force majeure. Earthquakes, floods, hurricanes or volcanic eruptions generally have all the required characteristics. Their exceptional nature and their scale usually make it possible to satisfy the three cumulative criteria.

Contemporary climate change nevertheless tends to alter the approach to certain natural phenomena. Events once regarded as unforeseeable can now be anticipated thanks to improved weather models, which leads to a stricter assessment of unforeseeability, in particular for recurrent floods in areas identified as at risk.

Classification as force majeure does not follow automatically from the official recognition of a natural disaster. The courts carry out a case-by-case examination, taking into account the particular circumstances and the actual impact of the event on the performance of the contract in question.

Acts of the authorities (faits du prince) and political events

Decisions of the public authorities may constitute cases of force majeure where they are unforeseeable and make performance of the contractual obligations impossible. This category covers in particular major regulatory changes, emergency measures and sectoral bans.

Assessing whether public measures were unforeseeable requires an in-depth contextual analysis. Announced regulatory developments or known political directions may affect classification as force majeure. Classification also depends on the nature of the obligation: as regards the bans on receiving the public imposed in spring 2020, the Cour de cassation held that a tenant was not entitled to rely on force majeure to avoid paying its rent (Cour de cassation, 3rd Civil Chamber, 30 June 2022, No. 21-20.190).

Armed conflicts and situations of insurrection have traditionally been recognised causes of force majeure. Their exceptional nature and their impact on economic activity generally justify this classification, subject to an examination of the particular circumstances and of the criteria in Article 1218 of the French Civil Code.

Strikes and industrial action

The classification of strikes as cases of force majeure is the subject of a nuanced approach in the case law. Industrial action internal to the company generally cannot be relied on as force majeure, because it lacks externality. By contrast, general or sector-wide strikes may, under certain conditions, justify this classification.

The assessment of whether industrial action was unforeseeable takes account of the social climate and of ongoing negotiations. A strike announced well in advance generally loses its unforeseeable character. The scale and duration of the action also influence the analysis.

The contemporary development of the criteria

The impact of new technologies

Technological progress is gradually changing the assessment of the criteria for force majeure. Early warning systems, predictive models and business continuity solutions reduce the unforeseeable and irresistible character of many events.

This development has led to higher standards in the case law. Companies are required to deploy means of prevention and adaptation proportionate to their activity and to the risks identified. Relying on force majeure now requires proof of substantial preventive efforts. For example, a widespread IT failure can no longer systematically be relied on as force majeure if the company has not put appropriate back-up systems in place.

The increasing dematerialisation of economic activity also influences the assessment of irresistibility. Remote working solutions and digital platforms offer alternatives that can maintain partial performance of contractual obligations. Thus, during the 2020 lockdown, companies that were able to maintain activity through remote working found it harder to rely on force majeure.

Environmental and public health issues

Contemporary environmental concerns are transforming the approach to force majeure. Extreme weather events, although exceptional, now form part of a documented perspective of global warming. This development affects the assessment of whether they are unforeseeable.

Public health crises are a category of event capable of giving rise to situations of force majeure. The scale and speed of spread of epidemics may justify this classification, subject to a detailed analysis of their impact. The COVID-19 pandemic gave rise to extensive litigation; the Cour de cassation in particular rejected force majeure relied on by a tenant to avoid paying rent during the administrative closure from March to May 2020 (Cour de cassation, 3rd Civil Chamber, 30 June 2022, No. 21-20.190), in accordance with the principle that the debtor of an obligation to pay a sum of money cannot be released from it by force majeure (Cour de cassation, Commercial Chamber, 16 September 2014, No. 13-20.306).

Taking environmental factors into account in corporate strategy changes what the courts expect. Companies are encouraged to build climate risks into their planning, which may affect the assessment of whether certain events were unforeseeable, including episodes of exceptional drought.

The legal consequences of force majeure

The effects on contractual obligations

Recognition of a case of force majeure has considerable legal effects on contractual obligations. Under Article 1218, paragraph 2, of the French Civil Code, if the impediment is temporary, performance of the obligation is suspended unless the resulting delay justifies termination of the contract; if the impediment is permanent, the contract is terminated by operation of law. Outside force majeure, the remedies open to a creditor facing a defaulting counterparty are set out in our article on remedies for contractual non-performance.

Temporary impossibility of performance suspends performance of the obligation affected. This suspension is generally accompanied by a postponement of due dates and an adaptation of the terms of performance. Temporary force majeure preserves the contract, unless the resulting delay justifies its termination.

Permanent impossibility of performance results in termination of the contract by operation of law, the parties being released from their obligations under the conditions laid down in Articles 1351 and 1351-1 of the French Civil Code. The debtor prevented from performing owes no damages where it shows that performance was prevented by force majeure (Article 1231-1 of the French Civil Code).

The allocation of risks and costs

Force majeure influences the allocation of risks between the contracting parties. It shifts the economic burden of non-performance onto the party who was to benefit from the performance, thereby altering the original contractual balance.

This allocation may be adjusted by specific contractual clauses. Complex contracts frequently include mechanisms for sharing additional costs and arrangements for adapting to exceptional circumstances. The related mechanism of renegotiation in the event of a change of circumstances is analysed in our article on unforeseeability (imprévision) and the hardship clause in B2B contracts.

Relying on force majeure does not prevent claims under warranty against third parties responsible for the disruptive event. The debtor prevented from performing retains its remedies against those who caused the damage, under the ordinary rules of liability.

Practical recommendations for identification

Building the evidence file

Identifying a case of force majeure effectively requires a rigorous evidence file to be built. This documentation must establish beyond dispute the reality of the event and its impact on contractual performance.

Proof that the event was beyond the debtor's control relies on objective factual evidence. Expert reports, official certificates and witness statements are all probative. The chronology of events must be carefully established in order to show the absence of any causal link with the debtor's conduct. For example, in the case of a flood, weather bulletins, natural disaster orders and reports by a commissaire de justice (bailiff) should be gathered.

Unforeseeability is shown by reference to the circumstances known when the contract was concluded. Forward-looking studies, risk analyses and the contractual documentation are relevant evidence. Thus, a contract signed in January 2020 could not reasonably have foreseen the scale of the COVID-19 pandemic.

Notification and mitigation obligations

Relying on force majeure comes with strict procedural obligations. Notification within the contractual or statutory time limits conditions the effectiveness of this defence. Failure to notify may be interpreted as a waiver of the benefit of the exemption.

The debtor prevented from performing must also show that the effects of the event could not be avoided by appropriate measures (Article 1218 of the French Civil Code). It is therefore for the debtor to make reasonable efforts to limit the consequences of the event, failing which irresistibility may be rejected.

Documenting mitigation efforts is an essential element of proof. The alternative measures considered, the investments made and the search for solutions must be carefully documented in order to justify the irresistibility of the impediment.

Identifying cases of force majeure requires a methodical approach, based on the cumulative analysis of the conditions laid down in Article 1218 of the French Civil Code: an event beyond the debtor's control, which could not reasonably have been foreseen when the contract was concluded and whose effects could not be avoided by appropriate measures. Changes in the economic, technological and environmental context call for constant vigilance in assessing these exceptional situations and in drafting the contractual clauses that govern them.