Authored By: Simran Pejatta
University of Warwick
1. Introduction
The commercial disruption caused by COVID-19 in the United Kingdom created immediate uncertainty for parties to ongoing contractual relationships. Restrictions introduced during the pandemic changed the circumstances in which many agreements were expected to operate, leaving parties unsure how their obligations should be performed when performance was no longer feasible. The scale of the disruption exposed assumptions about contractual risk that had not anticipated events capable of affecting entire sectors simultaneously.
During this period, parties were forced to rely on the contractual mechanisms available to them to determine whether relief from performance could be justified. The pandemic highlighted the extent to which force majeure clauses depend upon the language agreed between the parties. English law provides no statutory definition of force majeure, leaving its scope to contractual interpretation and offering limited certainty where disruption was prolonged and widespread.
This article argues that COVID-19 exposed weaknesses in the operation of force majeure within UK commercial contracts. It considers the existing legal position and judicial response to pandemic-related disputes, before assessing whether clearer standards are needed to support more predictable allocation of contractual risk in future crises.
2. Legal Framework: Doctrinal Foundations of Force Majeure in English Law
Force majeure clauses relieve a party from its obligation to perform where an external event prevents performance and is beyond the party’s reasonable control.1 English contract law requires the party invoking force majeure to demonstrate that the event could not have been avoided by reasonable steps. This reflects the high threshold associated with force majeure, which protects only those who have taken all reasonable measures to avoid or mitigate the event’s effects.
The courts have long recognised an implied obligation to take reasonable endeavours before relying on an exceptions clause or force majeure clause. In Bulman & Dickson v Fenwick & Co, the Court of Appeal held that a strike does not excuse performance where delivery could still be taken through reasonable exertion.2 The same principle was applied in B & S Contracts and Design Ltd v Victor Green Publications Ltd, where the court emphasised that parties relying on force majeure must show they took all reasonable efforts to avoid the impediment.3 The requirement was reiterated in Channel Island Ferries Ltd v Sealink UK Ltd, confirming that a party must demonstrate reasonable steps to avoid or mitigate the event’s consequences.4
The modern articulation of causation in this context is found in Classic Maritime Inc v Limbungan Makmur Sdn Bhd, where the Court of Appeal held that an exceptions clause requires proof that the failure to perform “resulted from” the event, which in turn demands a “but for” causal link.5 This establishes that force majeure cannot be invoked where the party would not have performed even absent the alleged event.6
Dwyer (UK Franchising) Ltd v Fredbar Ltd, although concerned with restrictive covenants, offers a further interpretive principle: the Court of Appeal stressed that contractual obligations must remain within what the parties contemplated at the time of agreement.7
3. Case Law Analysis: How the Courts Constrain the Scope of Force Majeure
The Supreme Court’s judgment in RTI Ltd v MUR Shipping BV provides the strongest recent guidance on the limits of reasonable endeavours within force majeure clauses. The Court held that reasonable endeavours do not require a party to accept a different mode of performance unless the contract clearly provides for it.8 The offer to pay in euros rather than US dollars would have avoided delay, but it was not the performance the parties had agreed to. The Court explained that the proviso concerns steps aimed at enabling contractual performance, not steps that replace it.9 This approach reflects a causation-based understanding of force majeure. A party may rely on the clause only if the failure to perform was caused by the event and could not have been avoided through reasonable steps directed at performing the contract according to its terms.10 The decision reinforces contractual certainty by preventing tribunals from using broad notions of reasonableness to dilute rights deliberately preserved in the bargain.
The Court of Appeal’s reasoning in Classic Maritime Inc v Limbungan Makmur Sdn Bhd strengthens this strict approach through its treatment of causation. The clause required the charterer to show that its failure to supply cargoes resulted from the dam burst.11 The Court held that this required a genuine “but for” causal link. The charterer could not rely on the clause because it would not have performed even if the dam had not failed.12 The judgment confirms that force majeure cannot excuse non-performance where the party’s own inability or unwillingness is the true cause. The clause protects against external impediments, not internal failures, and must be construed narrowly to preserve the allocation of risk agreed by the parties.
Dwyer (UK Franchising) Ltd v Fredbar Ltd, introduced in Part 2, develops the point further. Although the case concerns restrictive covenants, the Court of Appeal’s reasoning is instructive for contractual interpretation, since it stressed that contractual obligations must remain within what the parties contemplated at the time of agreement.13 The franchisor could not rely on a clause that imposed burdens disproportionate to the legitimate interests it sought to protect. The judgment demonstrates a wider judicial tendency to resist interpretations that stretch contractual language to impose obligations that were never part of the original allocation of risk.
4. Critical Analysis of Judicial Treatment of Exceptions Clauses
Recent authorities show that English courts are unwilling to allow exceptions clauses to dilute obligations that parties deliberately assumed, and this commitment influences their reasoning across contexts. In RTI Ltd v MUR Shipping BV, the Supreme Court rejected the argument that reasonable endeavours could require acceptance of a different mode of performance simply because it would resolve a sanctions problem.14 The Court treated the clause as a device for supporting the agreed performance, not redesigning it, which accords with the commercial view often taken by Norton Rose Fulbright that force majeure only operates coherently when courts preserve the risk allocation the parties chose.15
The approach in Classic Maritime Inc v Limbungan Makmur Sdn Bhd confirms that courts expect parties to bear responsibility for failures that fall within their own control.16 The charterer’s inability to perform was unrelated to the dam burst, and the Court declined to excuse it.17 This reasoning prevents force majeure from becoming a mechanism for shifting responsibility for internal shortcomings.
The analysis in Dwyer (UK Franchising) Ltd v Fredbar Ltd shows that this discipline applies even when external events appear compelling. The franchisor’s reliance on the force majeure clause during Mr Bartlett’s COVID self-isolation was tested against what the parties actually contemplated at the time of contracting, demonstrating the courts’ refusal to expand exceptions clauses beyond their intended scope.18
5. Conclusion
In RTI, the Supreme Court held that a reasonable endeavours clause cannot be used to push a party into a different mode of performance, even where that alternative would remove the obstacle. This decision restricts the clause to the obligations the parties actually drafted and prevents it from becoming a route to adjust performance after the fact. Classic Maritime (commonly known as Limbungan) applied the same discipline through causation: the dam burst did not prevent the charterer from performing, so the force majeure clause had no effect. The Court treated the external event as legally irrelevant unless it genuinely blocked performance, which stops parties from using exceptions clauses to cover shortcomings within their own control.
Dwyer shows how this approach operates when the external event is COVID-related. The Court accepted that self-isolation created operational pressure, but still assessed the clause by asking what the parties contemplated at the time of contracting. This method prevents COVID from functioning as a general excuse for non-performance and keeps exceptions clauses confined to genuine external prevention rather than broader commercial strain.
Taken together, these decisions suggest that the uncertainty identified at the outset arises less from judicial inconsistency than from the drafting of the clauses themselves. Any move towards clearer standards is therefore likely to depend on how parties allocate risk expressly in their contracts.
Footnote(S):
1 Chitty on Contracts (34th edn, Sweet & Maxwell 2021) para 15-151.
2 Bulman & Dickson v Fenwick & Co [1894] 1 QB 647 (CA) 652–653.
3 B & S Contracts and Design Ltd v Victor Green Publications Ltd [1984] ICR 419 (CA) 425–426.
4 Channel Island Ferries Ltd v Sealink UK Ltd [1988] 1 Lloyd’s Rep 323 (CA) 327–328.
5 Classic Maritime Inc v Limbungan Makmur Sdn Bhd [2019] EWCA Civ 1102 [69]–[71].
6 ibid [72]–[75].
7 Dwyer (UK Franchising) Ltd v Fredbar Ltd [2021] EWCA Civ 1218 [54]–[60].
8 RTI Ltd v MUR Shipping BV [2024] UKSC 18.
9 ibid [54]–[56].
10 ibid [60]–[63].
11 Classic Maritime Inc v Limbungan Makmur Sdn Bhd [2019] EWCA Civ 1102, [69]–[71].
12 ibid [72]–[75].
13 Dwyer (UK Franchising) Ltd v Fredbar Ltd [2021] EWCA Civ 1218, [54]–[60].
14 RTI Ltd v MUR Shipping BV [2024] UKSC 18 [36]–[38].
15 Norton Rose Fulbright, ‘Force majeure clauses in commercial contracts’ (Norton Rose Fulbright, 2023) <https://www.nortonrosefulbright.com/en/knowledge/publications/force-majeure-clauses-in-commercialcontracts> accessed 9 August 2026.
16 Classic Maritime Inc v Limbungan Makmur Sdn Bhd [2019] EWCA Civ 1102 [71].
17 ibid [110]-[111].
18 Dwyer (UK Franchising) Ltd v Fredbar Ltd [2022] EWCA Civ 889 [17], [293]–[306].
Bibliography
Cases
B & S Contracts and Design Ltd v Victor Green Publications Ltd [1984] ICR 419 (CA)
Bulman & Dickson v Fenwick & Co [1894] 1 QB 647 (CA)
Channel Island Ferries Ltd v Sealink UK Ltd [1988] 1 Lloyd’s Rep 323 (CA)
Classic Maritime Inc v Limbungan Makmur Sdn Bhd [2019] EWCA Civ 1102
Dwyer (UK Franchising) Ltd v Fredbar Ltd [2021] EWCA Civ 1218
RTI Ltd v MUR Shipping BV [2024] UKSC 18
Secondary Sources
Chitty on Contracts (34th edn, Sweet & Maxwell 2021)
Norton Rose Fulbright, ‘Force majeure and COVID-19: contractual performance under pressure’ (Norton Rose Fulbright, 2020) <https://www.nortonrosefulbright.com> accessed 9 August 2026.
