Force Majeure Clauses in Commercial Contracts in the Aftermath of COVID-19 in Pakistan: Legal and Practical Perspectives

Abstract

The COVID-19 shock exposed the limits of legacy contract language and court doctrines in Pakistan. Parties scrambled to invoke force majeure; courts reached for Section 56 of the Contract Act, 1872 (frustration/impossibility), while contract text varied widely in scope and procedure. This paper offers a doctrinally grounded, practice-oriented account of how force majeure should operate in Pakistan after COVID-19. I begin by separating force majeure (contractual) from frustration/impossibility (statutory), then analyze the principal Pakistani decisions that sketch the concept’s contours and burdens. I position Pakistan’s case law against leading international frameworks UNIDROIT Principles art. 7.1.7, CISG art. 79, and the ICC 2020 Force Majeure & Hardship Clauses to show where Pakistani doctrine is both consistent and out of step. I then trace how pandemic-era measures (e.g., lockdown orders) affected performance and litigants’ evidentiary burdens, and I extract drafting rules that actually work: precise event lists (including “epidemic/pandemic” and “governmental orders”), notice and mitigation mechanics, objective thresholds for suspension/termination, and guardrails distinguishing hardship from true force majeure. Comparative snapshots from France, Germany, and China round out the analysis, illustrating how targeted emergency instruments can preserve contractual order without eroding pacta sunt servanda. The paper concludes with statutory and judicial reform proposals (including model language and a burden-of-proof roadmap) designed to reduce uncertainty ex ante and streamline adjudication ex post. (Contract Act, 1872, § 56; ICC, 2020; UNIDROIT, 2016; United Nations, 1980; Abdul Waheed v. Additional District Judge, PLD 2021 Lahore 453). (LegiFrance, UNIDROIT, Scribd)