Force Majeure in Thai Law — When Can You Invoke It? (Complete Guide)

Thundthornthep Yaem-Uthai, Ph.D. | LAS Legal | Updated 16 April 2026 | ภาษาไทย

Floods, earthquakes, pandemics, wars — these events can make contractual performance impossible. What does Thai law say? Force Majeure, or "het sut wisat" (เหตุสุดวิสัย), is a legal doctrine every business operator must understand. It can serve as a shield or become a trap, depending on whether it is invoked correctly and whether a well-drafted FM clause was in place from the outset.

This article covers: the definition and elements under Thai law (TCCC Section 219), COVID-19 lessons, how to draft a proper FM clause, the notification procedure, and the distinctions from Hardship and Frustration. It also includes landmark Supreme Court decisions and three real-world business case studies.

Definition of "Force Majeure" — TCCC Section 8

The Thai Civil and Commercial Code (TCCC), Section 8 defines force majeure as follows: "An act of God means any event, whether as to its occurrence or as to its consequences, which could not have been prevented even if the person subject thereto, or about to be subject thereto, had taken such care as must reasonably be expected from a person in the same situation."

Key Words in the Definition

• "Could not have been prevented" — the critical threshold; the party must prove that even with full reasonable precautions, the event was unavoidable.
• "Reasonably expected" — an objective standard; the court looks at a person in the same position, not a subjective personal standard.
• "In the same situation" — business operators are held to a higher standard of care than private individuals.

Examples Recognized as Force Majeure Under Thai Law and Court Decisions

• Unexpected natural disasters — major floods, earthquakes, severe storms
• War, rebellion, declaration of martial law
• Government orders directly prohibiting or closing a business
• Government-mandated lockdowns due to epidemic (COVID-19 in qualifying circumstances)
• General strikes not attributable to either party's conduct

Examples That Do NOT Qualify as Force Majeure

• Rising raw material prices, however severe
• Employee resignation or inability to find replacement workers
• Economic recession or high inflation
• A party's financial difficulty or insolvency
• Foreseeable protests that could have been anticipated in advance

Elements That Must Be Proven

To successfully invoke force majeure under Thai law, the invoking party must prove four elements:

Legal Consequences of Force Majeure

Section 219 — Obligation Becomes Impossible

TCCC Section 219 provides: "If performance of an obligation becomes impossible owing to a circumstance for which the obligor is not responsible, the obligor is discharged from the obligation."

That is, if force majeure makes performance entirely impossible, the obligor is discharged — no obligation to perform and no liability for damages.

Critical Point: "Impossible" Is Not "More Difficult"

Section 372 — Synallagmatic (Bilateral) Contracts

TCCC Section 372 provides that in a synallagmatic contract, if performance becomes impossible for a reason not attributable to the obligor, the obligor loses the right to claim counter-performance. In other words:

• If Party A must deliver goods but FM prevents delivery — A is not liable for breach, but A also loses the right to receive payment from Party B.
• Both parties are released from their obligations; neither gains nor loses from the contract.
• If A has already received advance payment, A may be required to return it under unjust enrichment (TCCC Sections 406–419).

Section 220 — Burden of Proof

TCCC Section 220 provides that the obligor shall be liable for damage resulting from negligence, unless the obligor proves that the damage arose from a circumstance for which the obligor is not responsible. In short, the party invoking FM bears the burden of proof.

COVID-19 and Force Majeure in Thailand — Key Lessons

The COVID-19 pandemic during 2020–2022 generated a large number of FM disputes in Thailand. The key lessons from this period are as follows.

Situations Where FM Was Accepted

• Government-ordered business closure: Where the Emergency Decree on Public Administration in Emergency Situations B.E. 2548 or orders of the Emergency Operations Center (EOC) directly ordered a business to close (e.g., shopping malls, restaurants, entertainment venues), making it entirely impossible to provide services or deliver goods.
• International travel bans: Where borders were closed or flights banned entirely, making cross-border delivery of goods impossible.
• State-ordered quarantine: Where key personnel required to carry out contractual duties were quarantined by law.

Situations Where FM Was NOT Accepted

• Decreased sales / reduced income: Not "impossible" — the business could still operate and pay its debts; it was merely harder.
• Increased costs: e.g., cost of PPE, additional cleaning — the business could still open.
• Some employees contracted COVID: Other employees could still work; operations were not entirely halted.
• Fewer customers / market slowdown: Decreased demand is not force majeure for the purpose of fulfilling payment obligations.

Six Lessons from COVID-19 to Build Into Every New Contract

Force Majeure vs Hardship vs Frustration

Section 388 — Hardship in Thai Law

TCCC Section 388 provides that if the subject-matter of an obligation is lawful and was impossible at the time the obligation was created, the contract is void. Some Thai legal scholars also invoke Section 388 to request judicial adjustment of contracts when circumstances have fundamentally changed. However, this approach does not yet have clear and consistent case law in Thailand, and the threshold for court intervention is high.

How to Draft a Force Majeure Clause

A well-drafted FM clause ensures both parties know in advance what happens when an FM event occurs, minimising disputes.

Structure of a Complete FM Clause

Key Pitfalls in Drafting the FM Clause

• Avoid an overly broad definition: Defining FM as "any event beyond a party's control" without limitation allows almost any circumstance to be invoked, undermining contractual certainty.
• Fix the notice period: Without a defined notice period, disputes about timeliness are inevitable.
• Specify the consequence clearly: Does FM suspend performance, or allow immediate termination?
• Define proof requirements: List the documents needed to substantiate an FM claim.
• Define the right to terminate after prolonged FM: Without this, neither party can exit and both are left waiting indefinitely.

Notification Procedure When Force Majeure Occurs

When an event that may constitute Force Majeure occurs, the following steps must be taken immediately:

1. Assess whether the elements of FM are met: Before invoking FM, confirm that performance is truly impossible — not merely harder. If uncertain, consult legal counsel first.
2. Notify the other party immediately: Send a written notice complying with the FM clause requirements. If the contract contains no notice requirement, notify promptly.
3. Include key information in the notice: (1) Nature of the event; (2) Expected duration; (3) Specific obligations affected; (4) Mitigation measures being taken.
4. Preserve evidence: Official announcements, news reports, photographs, internal records — everything that proves the event occurred and directly affected performance.
5. Take mitigation measures: Document all steps taken to reduce impact — finding alternative suppliers, rerouting deliveries, adjusting work methods.
6. Monitor and report progress: Keep the other party informed as the situation evolves.

Consequences of a Successful FM Claim

Force Majeure vs MAC/MAE — Important Distinction in Business Contracts

In M&A transactions, mergers, or large credit agreements, both Force Majeure Clauses and Material Adverse Change (MAC) / Material Adverse Effect (MAE) Clauses often appear. They serve similar functions but have important differences.

Thai Court Approach to Force Majeure

Principle 1 — "Impossible" Means Truly Impossible

Thai courts interpret "impossible" (พ้นวิสัย) strictly under TCCC Section 219. It means the obligor cannot perform at all — not merely that performance became harder or more expensive. If there is any way to perform, even at higher cost, the obligation is not "impossible."

Principle 2 — Burden of Proof Falls on the Invoking Party

The party claiming FM must prove under TCCC Section 220 that: (1) the event actually occurred; (2) it directly caused the inability to perform; and (3) reasonable mitigation measures were taken.

Principle 3 — Timeliness of Notice Matters

Although Thai law does not set a fixed notice deadline, courts give significant weight to "reasonableness." An unjustifiably late notice may be interpreted as a waiver of the right to invoke FM.

Principle 4 — Foreseeable Events Cannot Be FM

If the parties entered the contract knowing that the relevant event had already occurred (e.g., contracting during an active COVID outbreak), courts generally will not accept an FM claim for that event, since it was already foreseeable.

Landmark Supreme Court Decisions on Force Majeure

The following Supreme Court decisions (ฎีกา) illustrate how Thai courts have applied force majeure principles in commercial disputes.

Real-World Case Studies — 3 Business Scenarios

Case 1: COVID-19 Lockdown — Shopping Mall Lease (Company A)

Company A leased retail space in a shopping mall. The EOC issued an order closing all shopping malls under the Emergency Decree. Company A could not open its store at all for two months.

• FM invoked: The direct government closure order (TCCC Sec. 8) made operation entirely impossible.
• Legal consequence: Under TCCC Sections 8 and 372, the obligation to pay rent during the period of impossibility was suspended.
• Outcome: Landlord and tenant agreed to a 50% rent reduction for the closure period, consistent with FM principles and government guidance on lease negotiations during COVID-19.
• Lesson: Government-ordered closures that make the specific use of the leased premises impossible are the strongest FM scenarios. Document the government order and notify the landlord immediately in writing.

Case 2: 2011 Great Flood — Goods Delivery Contract (Company B)

Company B contracted to deliver machinery to a buyer's factory. The 2011 flood inundated major transportation routes and the buyer's factory itself for three months.

• FM invoked: The unprecedented flood (recognised as a natural disaster beyond any party's control) made delivery physically impossible.
• Legal consequence: Under TCCC Sections 8 and 219, the delivery obligation was suspended; contractual penalties for late delivery were waived.
• Outcome: Parties renegotiated an extension of the delivery deadline matching the flood duration. No damages were payable for the delay.
• Lesson: Preserve official flood records, government flood zone maps, and photographs. A clear FM clause specifying "natural disasters including floods" would have avoided any need for negotiation about whether FM applied.

Case 3: Construction Contractor COVID Claim REJECTED (Company C)

Company C, a construction contractor, invoked FM due to COVID-19, claiming that increased costs and supply chain disruptions made the project impossible to complete on time.

• FM NOT accepted: Company C's site was never closed by government order. Workers were available; materials could be sourced (at higher cost). Performance was harder and more expensive, but not truly impossible.
• Legal consequence: Company C remained liable for delay penalties. The court found this was Hardship (TCCC Sec. 388), not Force Majeure (Sec. 219).
• Lesson: Cost escalation alone — even severe cost escalation — does not constitute force majeure under Thai law. Construction contracts should contain a separate Hardship or Exceptional Cost Escalation clause if this risk needs to be addressed.

FM Clause Drafting Checklist — 10 Points

Before signing any contract with a Force Majeure clause, verify these 10 points:

1. List specific events: Include storm, flood, COVID-19, pandemic, epidemic, government emergency decree, and cyberattack. Do not rely solely on a vague catch-all.
2. Written notice within 7 days: Specify the notice period explicitly — recommended 5–7 business days from the date the FM event is known. Require written notice.
3. Define mitigation obligations: The invoking party must take all reasonable steps to limit the impact. Failure to mitigate can defeat an FM claim.
4. Specify consequences clearly: State whether FM results in (a) a time extension, (b) rent or price reduction, or (c) a right to terminate. Ambiguity leads to disputes.
5. Include proof requirements: List the documents required to substantiate an FM claim — official orders, news reports, photographs, expert statements.
6. "Inconvenience" is not FM: Expressly state that increased cost, reduced revenue, or market inconvenience does not constitute force majeure.
7. Add governing law and dispute resolution: Specify Thai law or international arbitration rules. Critical for cross-border contracts.
8. Review annually: FM clauses should be reviewed each year, particularly after emerging risk events (pandemics, geopolitical crises) to ensure coverage remains appropriate.
9. Consistency with insurance policies: Verify that the FM clause in the contract aligns with the coverage under the party's business interruption or cargo insurance policy.
10. Lawyer review before signing: For contracts with significant financial exposure, have counsel review the FM clause against applicable Thai law and the specific nature of the transaction.

Suspension vs Termination — The Critical Distinction

When FM is successfully invoked, the legal consequence is either Suspension (temporary deferral) or Termination (permanent ending of the contract), depending on the nature of the event and the contract's terms. These have very different implications.

Suspension — Temporary Deferral of Performance

• The contract remains in force — only performance is deferred temporarily.
• When FM ends, the invoking party must resume performance.
• The contract period is extended by the duration of the FM event.
• Appropriate for FM events expected to end within a reasonable time.
• Example: Temporary flood blocking a highway for two weeks — delivery delayed, not cancelled.

Termination — Permanent Ending of the Contract Due to FM

• Arises when FM is permanent or continues beyond the contractually specified maximum period.
• The contract ends; both parties are released from future obligations.
• Advance payments may need to be partially refunded (unjust enrichment — TCCC Sec. 406–419).
• Termination must be made by an express notice — it does not arise automatically (unless the contract says otherwise).
• Example: Factory completely destroyed — no capacity to ever produce the goods again.

Force Majeure in International Contracts — ICC 2020 Standard

For contracts with foreign counterparties, the International Chamber of Commerce (ICC) has published the ICC Force Majeure Clause 2020 as a reference standard. This clause is more comprehensive than relying solely on statutory Thai law. If adopted, it should be adapted to align with Thai law and the parties should agree on specific notice periods. It is particularly recommended in construction contracts, EPC agreements, and international sale of goods contracts. Invoking an internationally recognised FM standard reduces disputes in international arbitration. UNIDROIT Principles 2016 Article 7.1.7 is another reference standard used where the parties choose general principles of law rather than a specific national law.

LAS Practical Guide — What To Do When an FM Event Occurs

1. Assess the situation within 24–48 hours: Is performance truly impossible, or merely harder? If merely harder — FM will not succeed; find a way to perform.
2. Read the FM clause in full: Check the definition, the list of events, the notice period, the required form of notice, and the stated consequences.
3. Preserve evidence immediately: Official proclamations, news reports, photographs, internal records — everything that proves the event occurred and directly affected your ability to perform.
4. Send the notice within the required period: Do not wait for the situation to become fully clear before notifying — notify immediately and state that you will provide further updates.
5. Take mitigation measures and document them: Show that every reasonable alternative was explored — alternative suppliers, alternative routes, modified work methods.
6. Consult legal counsel: Especially for high-value contracts — assess the strength of the FM claim and prepare a negotiation strategy before making a formal claim.

LAS Risk Assessment — Force Majeure

Frequently Asked Questions (FAQ)

Summary

Force Majeure is not a ready-made excuse usable in every difficult situation. All elements under TCCC Section 8 must be satisfied — in particular, the event must create true impossibility, not merely hardship or difficulty. The COVID-19 experience demonstrated that a clear, well-drafted FM clause — defining the FM events, the notification procedure, the legal consequences, and the maximum duration — is the best way to prevent unnecessary disputes. The LAS Shield principle: prepare the FM clause before the crisis occurs, not after it arrives.

Read more: LAS Shield Part 7 — Warranty vs Guarantee Under Thai Law