force majeure
noun · höhere Gewalt
Force majeure is höhere Gewalt, a concept German statutes use without defining it: the courts read it as an event coming from outside, unconnected with the business and unavoidable even by the utmost care reasonably to be expected. German law needs no general force-majeure doctrine because fault, impossibility and disturbance of the contractual basis do that work, so the clause is a risk allocation rather than a translation of a statutory institute.
Which translation, when
Why
Force majeure translates as höhere Gewalt, and the interesting part is not the word but the different place the concept occupies in the two systems. German statutes use höhere Gewalt in individual provisions, the suspension of limitation periods in § 206 BGB or the innkeeper’s liability privilege in § 701 Abs. 3 BGB, without ever defining it, so the content comes from the courts: an event coming from outside, showing no connection with the business and not avertible even by the utmost care that can reasonably be expected, as the Bundesgerichtshof put it for travel law on 16 May 2017, X ZR 142/15, with the further requirement, in the older formulations, that the event is unforeseeable by human insight and experience and not to be accepted merely because it recurs. Any fault on the part of the party invoking it defeats the plea. Now the systemic point. English contracts need a force-majeure clause because the common law otherwise offers only the narrow doctrine of frustration; German law does not, because a debtor who is not at fault owes no damages, § 276 BGB, a duty that has become impossible ends by operation of law, and a contract whose basis has collapsed can be adapted, the last two routes belonging to the frustration entry. A force-majeure clause under German law is therefore a deliberate reallocation of risk: it names the triggering events, imposes a notice duty and settles whether performance is suspended, the period extended or the contract terminable, and it generally favours the supplier. That is also where the drafting risk sits, since such clauses usually travel in standard terms and face the fairness review, and a sweeping self-definition of the trigger or an unlimited suspension is exposed. One vocabulary note: act of God is the narrower English phrase for natural events, while force majeure and höhere Gewalt extend to war, official measures and comparable outside interference.
Typical mistakes
- German statutes use höhere Gewalt without defining it, so presenting the clause as a rendering of a codified doctrine misdescribes the source of its content.
- Fault on the part of the party invoking höhere Gewalt defeats it, so a clause read as excusing any disruption promises more than the concept carries.
- Act of God covers natural events only, so treating it as the English equivalent of höhere Gewalt narrows the trigger.
What matters
Drafting or translating a supply contract under German law: render force majeure as höhere Gewalt, spell out the triggering events, the notice duty and the consequences rather than relying on the term itself, and keep the suspension period bounded so the clause survives the review of standard terms.
What the machine misses
Fed through an engine, force majeure comes back as höhere Macht or is left untranslated in a German sentence, and the working term is höhere Gewalt, undefined in the statutes and filled by the courts as an outside event unconnected with the business and unavoidable by the utmost reasonable care; the calque also hides that German law reaches the same result through fault, impossibility and the contractual basis.
Examples
| force majeure | höhere Gewalt |
| an event of force majeure | ein Fall höherer Gewalt |
| performance is suspended for the duration | die Leistungspflicht ruht für die Dauer |
| act of God | Naturereignis |
More notes on these sections
breach of contract Pflichtverletzung
negligence Fahrlässigkeit
duty of care Verkehrssicherungspflicht