The ‘Act of God’ Clause
‘Force majeure’ is a French term meaning ‘superior force.’ In the legal world, it refers to a contractual clause that anticipates unforeseen, catastrophic events that are beyond the control of any party involved. This provision allows a party to suspend or terminate their contractual duties without being held liable for breach of contract.
Film and television production contracts—from actor agreements to financing deals—almost always contain a force majeure clause. The industry is uniquely vulnerable to disruption, and this clause provides a critical legal safeguard against a host of potential disasters that could halt a production.
What Constitutes a ‘Superior Force’?
The clause typically contains a specific, though not always exhaustive, list of qualifying events. These often include:
- Natural Disasters: Events like earthquakes, hurricanes, floods, and volcanic eruptions.
- Human-Caused Events: Acts of war, terrorism, riots, and civil unrest.
- Labor Disputes: Industry-wide strikes, such as those by major unions like the WGA or SAG-AFTRA.
- Public Health Crises: Epidemics and pandemics.
- Governmental Action: A change in law, an embargo, or a government-mandated shutdown.
For the clause to be invoked, the event must not only occur but must also be the direct cause of the party’s inability to perform its contractual duties. For example, a hurricane in Florida would not be grounds to halt a production shooting entirely in California.
The COVID-19 and Strike Test Cases
The real-world importance of force majeure clauses was starkly illustrated by two major events in the 2020s. First, the COVID-19 pandemic in 2020 triggered force majeure clauses across the globe, leading to the shutdown of nearly all physical production. This resulted in complex legal and insurance negotiations over what costs were covered and when productions could safely resume. In response, contracts now often include specific ‘pandemic’ language rather than relying on the general force majeure clause.
Second, the 2023 WGA and SAG-AFTRA strikes provided another example. Studios widely invoked force majeure clauses to suspend ‘overall deals’ with writers and producers, arguing that the strike made it impossible for them to render their services. This highlighted the clause’s power to fundamentally alter contractual obligations during times of industry-wide crisis.