Between Obligation And Impossibility: The Legal Weight Of Force Majeure Clauses In A Post-Pandemic Commercial World

Abstract

The COVID-19 pandemic catalyzed an unprecedented legal reckoning for the doctrine of force majeure, thrusting it from contractual obscurity into the center of global commercial litigation. This article critically interrogates the post-pandemic legal weight of force majeure clauses, examining the tension between the imperative to perform contractual obligations and the radical contingencies that render such performance impossible or commercially impracticable. Drawing from comparative jurisprudence across common law and civil law jurisdictions, this research elucidates how courts have reconfigured thresholds of foreseeability, causation, and mitigation in response to COVID-19 and attendant governmental restrictions. This research explores the legal fragmentation and conceptual inconsistencies that have emerged, particularly where clauses lacked express reference to pandemics or where governmental action, rather than the pathogen itself, formed the core disruptive event. It further interrogates the jurisprudential shift toward a more contextual and equitable approach in interpreting commercial impossibility, challenging the classical paradigm of absolute contractual liability. By situating force majeure within a broader framework of risk allocation and contractual justice, this research argues that the pandemic has redefined not merely the content but also the normative function of such clauses. Moreover, it traces emerging legislative responses and industry-driven contractual reforms that attempt to recalibrate commercial expectations in light of systemic disruptions. This research contends that force majeure clauses must evolve from rigid exculpatory devices into adaptive legal instruments capable of mediating between legal obligation and economic impossibility in an era marked by global volatility and interconnected fragility.