Hardship: the clause for the case force majeure does not solve

On 2 April 2025, the United States announced sweeping tariffs that, over the following months, led to markedly higher tariff levels.¹ For a supplier that had concluded a fixed-price contract to deliver to a US customer a year earlier, delivered duty paid under the Incoterms rule DDP, that changed everything and nothing. It could still deliver. Only now every delivery cost it a multiple of the original calculation. On 20 February 2026, the US Supreme Court held that the emergency statute on which these tariffs were based does not authorize the President to impose tariffs. The administration switched to another statutory basis.²

For this supplier, the force majeure clause is worthless. Force majeure prevents performance; here it has merely become more expensive. Impossibility under Section 275 BGB does not apply, because a party that owes goods only by kind and quantity, an obligation in kind, bears the procurement risk. As long as the goods are available on the market it must procure them, if necessary at a higher price, and in supply business that is the normal case. And yet the contract has lost its balance. That is precisely hardship, and precisely the case for which almost no contract contains a rule.

Force majeure excuses, hardship adapts

The distinction decides the legal consequence. Force majeure suspends or excuses performance where an external event prevents it. Hardship captures the economic consequences of a disruption and leads not to release but to adjustment of the contract.¹

This line is not always clear. An export ban that makes delivery absolutely impossible is force majeure. A tariff increase that merely makes the same delivery more expensive is a case for hardship and for price adjustment.³ Between the two lies a gray zone that the parties have to settle in the contract clause. What the event is called does not matter. Anyone drafting a hardship clause should therefore know how it differs from the force majeure clause. It covers not prevented performance but more onerous or devalued performance. Both belong in the same contract, but in two separate clauses. Merging them mixes two different sets of conditions with two different consequences, and in my view that puts transparency at risk. It is no accident that the ICC published two model clauses. They are coordinated with each other but kept separate.⁴

For the distinction from force majeure and the duty to notify, I refer to the article “Why most force majeure clauses fail”. Here I deal with the other half of the problem.

A mental model: the incomplete contract

Why draft a dedicated clause at all? The economics of incomplete contracts gives the clearest answer. No contract can anticipate every future state of the world; the cost of spelling out every contingency is too high, and some events are simply unimaginable. Contracts are therefore necessarily incomplete, and what matters is not a complete rule for the unthinkable but the agreed procedure for the case that it happens.

A hardship clause is exactly that procedure. It does not regulate which disruption occurs but what happens when one occurs that nobody named: the parties sit down and restore the balance. A party that does not agree this procedure leaves it to the statute, and the statute says little on this point.

German law: Section 313 BGB, and what it lacks

German law does not recognize hardship as a distinct institution. The closest equivalent is interference with the basis of the contract under Section 313 BGB. It applies where circumstances that became the basis of the contract have changed seriously after conclusion, the parties would not have concluded the contract, or would have done so differently, had they known, and holding one side to the unchanged contract is unreasonable. The consequence is adjustment, and only where that is impossible or unreasonable, rescission or, in a continuing obligation, termination.

That Section 313 BGB can apply is shown by an older decision that regains currency in the present tariff debate. A German supplier had undertaken in a settlement to deliver canned beer to an Iranian buyer at preferential prices. The Islamic Revolution and the ensuing alcohol prohibition made the deliveries worthless to the buyer. The Federal Court of Justice upheld the court of appeal’s adaptation of the settlement under the doctrine of changed circumstances. The alcohol ban had removed the basis of the settlement, and a contract is as a rule to be adapted rather than set aside.⁵ For disruptions caused by trade restrictions, that is a particularly instructive precedent.

The limits are shown just as clearly by more recent case law, and more sharply than it is usually reported. During the pandemic, the Federal Court of Justice decided two things about a commercial lease whose premises had been closed by official order. First, Section 313 BGB applies, because the pandemic realized a general risk of life that falls on neither side alone. Second, and this is readily overlooked, it set aside the halving of the rent ordered by the court of appeal: a blanket approach does not do justice to the element of unreasonableness, what is required is a concrete weighing of all the circumstances of the individual case, into which state aid must also be factored.⁶

Anyone who turns that into the rule of thumb “split it down the middle” has misread the case. What a sound weighing looks like is shown by a decision of the Düsseldorf Court of Appeal six months later. There the halving of the rent for a closed hotel held up, not as a rule but because it had been calculated through: the rent was double the interest and amortization the landlord had to service on its investment, so halving it left both sides at roughly zero return. Three points apply equally to supply contracts. An actual threat to economic existence is not required; the disruption must extend beyond a wholly negligible period, for which four months sufficed; and while state aid must in principle be taken into account, earmarked benefits such as short-time working allowance must not.⁷

Section 313 BGB therefore sets no quota. It does not shift the entire risk to the other side, nor does it split it by a fixed key. It calls for a weighing exercise with an open outcome. Anyone hoping for a complete shift will be disappointed, and so will anyone hoping for a predictable quota.

Three further limits are decisive for supply contracts. First, the contractual allocation of risk prevails: where the parties have allocated the risk themselves, their agreement displaces Section 313 BGB.⁸ Second, ordinary market fluctuation does not suffice; what is required is a change so fundamental that it clearly exceeds normal contractual risk. And third, the practically most important point, Section 313 BGB sets out no procedure for renegotiation. According to the Federal Court of Justice, the side that benefits from the changed circumstances must cooperate in the adjustment. If it refuses, the other side can sue for the adjustment and claim damages.⁹ The statute, however, sets no deadline and no fixed steps. A party that wants renegotiation as an orderly procedure must agree it by contract.

A fourth limit is especially hard on the supplier. The calculation underlying its price is in principle not part of the basis of the contract, because the other side’s intent to contract does not build on it. It falls within the sphere of risk of the party doing the calculating, and that holds even where it disclosed the calculation unilaterally before contracting. It is otherwise where the parties expressly made the basis of calculation a subject of the negotiations.¹⁰

From that follows a drafting recommendation whose downside is worth knowing. A party that later wants to rely on Section 313 BGB has to write the circumstances underlying its price into the contract. In practice that is rarely workable. Who voluntarily discloses their calculation and gives the other side an advantage in the next price negotiation? As a rule it happens only where the customer enforces it anyway, as in automotive supply with its open-book obligations. For everyone else, that is the practical reason not to seek adjustment through the basis of the contract but through a clause tied to an objective trigger: an index, a named cost element, a threshold. A party that agrees such a clause discloses nothing about its margin, and the clause still works.

The second statutory rule does not help either. Gross disproportionality under Section 275(2) BGB entitles a party to refuse performance only where there is a stark mismatch between effort and the interest in performance.¹¹ In the hardship situation it regularly fails, because where a good can be sourced only from one country or is affected everywhere alike, the creditor’s interest rises in step with the debtor’s effort, and disproportionality falls away. Economic unreasonableness is therefore a case for Section 313 BGB, not for Section 275 BGB.

In practice, the parties first try adjustment by agreement under Sections 145, 147 BGB. This is where they go wrong most often. A supplier that passes on increased costs by sending a higher invoice has not exercised a right but merely made an offer. Silence is not acceptance, not even between merchants, unless particular circumstances are added, such as an established pattern of call-offs in an ongoing business relationship or negotiations carried to the point of a signature-ready draft.¹² A party that wants the adjustment agrees it in an amendment to the contract. The invoice alone is not enough.

The CISG: the dispute hardly anyone knows

International sales are often governed by the CISG, and that is where the real uncertainty begins. Whether Article 79 CISG, the convention’s exemption provision, also covers hardship is contested to this day.

The prevailing view accepts that economic unreasonableness can exceptionally be an impediment within the meaning of Article 79 CISG where the burden of performance exceeds the outermost limit of sacrifice.¹³ An opposing view pushes back: Article 79 CISG should not be extended to such cases. Its drafting history argues against it, a mere exemption from damages does not help the debtor because the creditor will then insist on performance, and Article 79 CISG does not provide the more flexible instrument of contract adaptation in any event. The preferable route is recourse to the national law that applies alongside the CISG.¹⁴ The prevailing view sets the threshold high in any case.¹⁵

How high is shown by an often-cited case from the Hamburg Court of Appeal. It allocated even a tripling of the market price in a speculative transaction to the debtor’s sphere of risk.¹⁴ Anyone hoping for hardship protection from the statute in an international sale should know that figure.

The distinctive contribution of CISG law lies elsewhere. In its Opinion No. 20, the CISG Advisory Council held that hardship is to be treated within the CISG as a special case of the impediment under Article 79, without recourse to national law. According to the Opinion, there is no fixed percentage threshold. In assessing whether hardship exists, six nonexclusive factors are to be taken into account.¹⁶ One of those factors is particularly important in practice. Where the seller has already obtained the goods from its own supplier, it may not withhold them and sell them at a higher profit to a second buyer. This prohibition on diversion is the only clear rule on allocating scarce goods that the Advisory Council derives from the CISG.

Decisive, however, is the remedies side, and it is sobering. Even where Article 79 CISG is applied to hardship, the prevailing view holds that neither a duty to renegotiate nor a power of the court to adapt the contract follows from it. Another view bases the duty to renegotiate on good faith or on Article 6.2.3 of the UNIDROIT Principles, and judicial adaptation on Article 6.2.3. The prevailing view objects that the CISG fully governs what follows from an exemption and leaves no gap.¹³ Where the debtor is exempted, the creditor may declare the contract avoided or offer to perform on adjusted terms. A right to judicial adaptation of the contract is not something the CISG grants.

Why the clause achieves more than the statute

Taken together, the two legal systems lead to a clear result. Section 313 BGB grants adjustment, but only with restraint and without a procedure for renegotiation. Where Article 79 is applied to hardship, the CISG grants exemption from damages, but no adjustment. The CISG thus follows an all-or-nothing logic. The hardship situation calls for a third way, namely to keep the contract on new terms, and to do so in an orderly procedure.

Under German law and the CISG, only agreement delivers that third way as an orderly procedure. The UNIDROIT Principles set it out in Articles 6.2.1 to 6.2.3. The debtor stays bound despite the more onerous performance; where hardship exists, a claim to renegotiation arises, and if that fails, the court may adapt or terminate the contract.¹⁷ It is precisely this model that the International Chamber of Commerce made usable for contract practice.

The ICC Hardship Clause

In 2020, the ICC published two coordinated model clauses, one for force majeure and one for hardship.¹⁸ I contributed to their development as a member of the ICC Commission on Commercial Law and Practice. The structure of the hardship clause follows a clear logic. Its first two paragraphs apply to all variants:

The clause is deliberately pitched above mere difficulty. It requires that performance has become excessively onerous and that the event was neither foreseeable nor avoidable at the time of contracting. Up to this point the clause is a pure duty to renegotiate. Its real value lies in the question it answers at signing: what happens when renegotiation fails?

To that, the ICC gives three answers to choose from. One is to be put into the contract:

Diagram: the three ICC hardship options once renegotiation has failed. Under 3A the affected party terminates. Under 3B the court or arbitral tribunal adapts the contract (marked in red as the only path that saves it) or terminates it. Under 3C the court or tribunal terminates the contract. Only 3B allows adaptation.

renegotiation fails →

3AThe affected party terminates. No judicial adaptation.

3BCourt or arbitral tribunal adapts or terminates.

3CCourt or arbitral tribunal terminates, without adapting.

red = adaptation, the only path that saves the contract

With this choice, the parties allocate power. Option 3A keeps the decision with the parties and, if talks fail, leaves only the exit. Option 3B gives the judge or arbitrator the strongest power, namely adaptation of the contract against the will of one side. Option 3C lies between them. For contracts that are meant to be adapted, 3B is the right choice, because it lets the judge or arbitrator keep the contract in force on new terms rather than merely end it; where the contract provides for arbitration anyway, the parties can replace “the judge or arbitrator” with “the arbitral tribunal”.¹⁹

The uniform sales law does not provide for judicial adaptation of the contract. With Option 3B, the parties agree on it expressly. The hardship clause therefore closes the gap in the CISG. And it covers more onerous and also devalued performance, for example through changes in the exchange rate or the internal value of a currency. Whether Article 79 CISG covers devalued performance is contested; the CISG Advisory Council says it does.²⁰

The standard-terms trap

One uncomfortable point remains. A party that does not negotiate the clause individually but imposes it as standard terms must reckon with German content review.

In principle, such adjustment clauses are valid. Section 313 BGB is mandatory, but the detailed shaping of the risk allocation is left to the parties; relevant clauses are generally recognized by the courts and take precedence over Section 313 BGB, in particular where they merely extend or specify its scope.²¹ Graf von Westphalen urges caution. In his view, a force majeure clause lacks transparency and is therefore invalid if, for the events it does not list expressly, it mixes two standards of care. These are the utmost care that the courts require for force majeure and the ordinary care required under Section 276(2) BGB.²² The term force majeure does not appear in the ICC Hardship Clause, so the objection does not reach it.

Incorporation by mere reference is a separate question. The ICC expressly provides for its force majeure clause to be incorporated by mere reference, and the text of the clauses is freely available. Nothing different applies, in my view, to the hardship clause if the reference names the chosen option (3A, 3B, or 3C). A reference to a set of rules the other party cannot readily consult would be problematic. The reference to the ICC clause points to a publicly available one. A party that nonetheless writes the full text into the contract does so because whoever signs should be able to read the clause without having to obtain it. That changes nothing about the review of content. An incorporated ICC clause remains a standard term if it was imposed rather than negotiated.²³

Review turns stricter as soon as the clause goes beyond renegotiation and adjusts the price itself. Automatic price adjustment and price escalation clauses are additionally subject to the limits of the German Price Clause Act (Preisklauselgesetz, PrKG), except in contracts between a business based in Germany and a party based abroad (Section 6 PrKG). Section 1(1) PrKG prohibits clauses tying a monetary debt directly to the price of goods that are not comparable; performance reservation, linkage, and cost element clauses under Section 1(2) PrKG remain permissible. For long-term contracts, value protection through an index has become established practice.²⁴ In domestic contracts, however, the price may be tied to a consumer price index only in the cases of Section 3 PrKG, for example for recurring payments over at least ten years. Among the permissible clauses, the cost element clause in standard terms is the most effective instrument and also the most demanding. It adjusts the price automatically when a named cost element moves. In return, the user has to disclose the individual cost elements and their weighting. The clause must not give the user any additional profit beyond passing costs through and must pass on cost reductions as well as increases.²⁵

One detail decides the risk of this construction. A breach of the Price Clause Act renders the clause invalid, as a rule, only upon a final judicial finding under Section 8 PrKG, whereas a breach of standard terms law does so immediately.²⁶ Standard terms review is thus the more dangerous of the two.

If the hardship clause falls away in a contract not governed by the CISG, Section 313 BGB applies. With it comes exactly the open-ended weighing described above. That is an acceptable fallback. A party that knows this fallback can draft more boldly than the most cautious reading of the case law suggests.

The same situation in different legal systems

Whether a hardship clause is needed at all depends on the applicable law, and the answers lie far apart.

It shows most sharply in the common law. Judicial adaptation of the contract is unknown to it; the doctrine of frustration ends the contract only within narrow limits and never adapts it. A bare duty to negotiate is also often unenforceable, an agreement to agree being void for uncertainty.²⁷ That is why English hardship clauses delegate the decision to a third party, an arbitral tribunal or an expert, and why the choice of ICC Option 3B matters there. It creates the power to adapt that the law itself refuses. That holds reliably, however, only where an arbitral tribunal decides. Whether an English state court will adapt under Option 3B is not settled. French law, by contrast, has had its own statutory model since 2016, imprévision under Article 1195 Civil Code, which the clause can modify or exclude.²⁸ Italian law has another, eccessiva onerosità under Article 1467 Civil Code, to which the clause adds the missing adaptation.²⁹ Choice of law therefore comes first in hardship as well.

Drafting from the clause outward

A party drafting a hardship clause decides five questions, in this order:

Some uncertainty remains. No clause can eliminate it. Whether performance was really “excessively” burdensome, whether an offered adjustment was “reasonable”, is decided in the end by a court or tribunal after the fact.¹³ The clause narrows that assessment, but it does not remove it. What it achieves is more modest and more valuable at once. It obliges the other side to negotiate before the dispute, and fixes in advance who decides if no agreement is reached. In a crisis, that is the difference between an orderly procedure and an open outcome.

Tariffs are the current teaching case. A party seeking protection against tariff exposure needs not one of these clauses but all of them: the right delivery term, a price adjustment clause, a hardship clause for the case of a gross shift, and the force majeure clause for the case where delivery becomes impossible.³¹ Who bears the tariff risk under which Incoterms rule, the seller under DDP or the buyer under DAP and DPU, is shown in the article “How to avoid US tariffs as an international supplier”; the risk allocation of the delivery terms themselves in the article “Incoterms® 2020: practical overview”.³²

Whether a clause holds or merely reassures depends not on its length but on whether someone asked, before signing, the one question that counts in a crisis: who adapts the contract if we cannot agree?

Frequently asked questions

What is hardship?

Hardship is a disruption that arises after contracting, was unforeseeable, and does not prevent performance but makes it excessively burdensome in economic terms. Performance remains possible, but the balance of the contract is so distorted that holding a party to the original terms becomes unreasonable. The consequence is not release but adjustment.

What is the difference between force majeure and hardship?

Force majeure prevents performance and excuses it, at least temporarily. Hardship leaves performance possible but makes it economically unreasonable, and it leads not to release but to renegotiation and adjustment.

Does German law recognize hardship?

Not as a distinct institution. The closest equivalent is interference with the basis of the contract under Section 313 BGB. It grants a right to adjustment, but no procedure for renegotiation, and the courts apply it with restraint. That is why a dedicated clause pays off, one that defines the threshold, the procedure, and the consequences more clearly than the statute.

Does Article 79 CISG also cover hardship?

That is contested. The prevailing view exceptionally recognizes economic unreasonableness as an impediment under Article 79 CISG; an opposing view refers such cases to national law. Even where Article 79 applies, the prevailing view is that the CISG grants neither a duty to renegotiate nor a judicial adjustment of the contract. A party that wants that consequence must agree it by contract.

What does the ICC Hardship Clause regulate?

It first binds the parties to the contract, requires renegotiation where performance has become excessively onerous, and offers three options if that fails: termination by the affected party (3A), adaptation or termination by the judge or arbitrator (3B), or termination by the judge or arbitrator (3C). For contracts that are meant to be adapted, 3B is the right choice, under the common law together with an arbitration clause.

Are hardship clauses valid in standard terms?

In principle yes, but not without risk. They may shape Section 313 BGB in more detail and take precedence over it. The ICC clause may be incorporated by reference if the reference names the chosen option (3A, 3B, or 3C); its text is freely available, so in my view no transparency problem arises from that. Incorporation changes nothing about the review of content: the ICC clause too remains a standard term if it was imposed rather than negotiated.

Notes

1. On the US tariffs from 2 April 2025 and their contract-law consequences, Schneider/Becker, Tariffs and Other Trade Restrictions: Contractual and Statutory Remedies under German Law for Disrupted Supply Chain Contracts, TLJ 2026, 185 (185). On the distinction, Unseld/Edel/Schnell/Russen/Watts, Dynamic Tariffs: Risks and Challenges for Commercial Contracts, TLJ 2026, 25 (26): force majeure suspends or excuses performance, hardship captures the economic consequences and leads to adjustment. ↩^{1 2}

2. Learning Resources, Inc. v. Trump, 607 U.S. 229 (2026); on the consequences, Schneider/Becker, TLJ 2026, 185 (185). ↩

3. Rothermel, Ereignisse und höhere Gewalt, Unmöglichkeit, Wegfall der Geschäftsgrundlage, Hardship, Frustration im BGB und in anderen Rechtsordnungen, IHR 2020, 89 (94); on tariffs also Schneider/Becker, TLJ 2026, 185 (186 f.). ↩

4. For consolidation into a single clause, Salger, in: Münchener Anwaltshandbuch Internationales Wirtschaftsrecht, 1st ed. 2017, Section 17 marginal no. 102 et seq. I consider separation preferable: it keeps the conditions and the consequences of the two disruptions apart and thus serves the transparency requirement; the ICC model clauses 2020 are likewise drafted separately. ↩

5. BGH, judgment of 8 February 1984 – VIII ZR 254/82 (canned-beer case), reasons II 1 e cc and ee; as a precedent for tariffs and trade restrictions, Schneider/Becker, TLJ 2026, 185 (188). ↩

6. BGH, judgment of 12 January 2022 – XII ZR 8/21, paras. 42 et seq. and 57, 63 f.: Section 313 BGB applies, while the court of appeal’s 50 percent reduction of the base rent was set aside because a blanket apportionment cannot replace a case-specific weighing; on the relevance of state benefits, official headnote 3. ↩

7. OLG Düsseldorf, judgment of 23 June 2022 – 10 U 192/21, para. 27 (no threat to economic existence required; four months are not a wholly negligible period), para. 30 (the quota calculated through) and para. 32 (short-time working allowance as an earmarked benefit is left out of account). ↩

8. BGH, judgment of 23 January 2013 – VIII ZR 47/12, paras. 16 f.; Schneider/Becker, TLJ 2026, 185 (188). ↩

9. BGH, judgment of 30 September 2011 – V ZR 17/11, paras. 33 f.; contra MüKoBGB/Finkenauer, 10th ed. 2025, Section 313 marginal no. 122. ↩

10. BGH, judgment of 10 September 2009 – VII ZR 82/08, para. 25; Dishev/Hoffmann/Müller, Die Ausführung von Verträgen im Zeichen von krisenbedingten Preissteigerungen, NJOZ 2024, 97 (98 f.); on the definition of the basis of the contract, BGH, judgment of 1 February 2012 – VIII ZR 307/10, para. 26. ↩

11. Section 275(2) BGB; on the standard of stark inefficiency, BGH, order of 14 January 2009 – VIII ZR 70/08, para. 18; on the regular inapplicability in the hardship situation, Schneider/Becker, TLJ 2026, 185 (186). ↩

12. Dishev/Hoffmann/Müller, NJOZ 2024, 97 (98), on Sections 145, 147 BGB and on silence between merchants. ↩

13. Schwenzer/Köhler, in: Schlechtriem/Schwenzer/Schroeter, Kommentar zum UN-Kaufrecht (CISG), 8th ed. 2025, Art. 79 marginal nos. 57–61: exemption from damages and unenforceability of the claim to performance; rejection of a duty to renegotiate and of judicial adaptation via Article 6.2.3 UNIDROIT Principles by the prevailing view; on the necessary judicial ex post assessment, marginal no. 61. On the prevailing view, BeckOGK/Bach, CISG, as of 1 June 2026, Art. 79 marginal no. 35 with further references. ↩^{1 2 3}

14. BeckOGK/Bach, CISG, as of 1 June 2026, Art. 79 marginal nos. 35–36.2: against extending Article 79 to endogenous market changes and in favor of recourse to the subsidiarily applicable national law; the Hamburg Court of Appeal decision cited (tripling of the market price in a speculative transaction) ibid. marginal no. 35.1. ↩^{1 2}

15. BeckOGK/Bach, CISG, as of 1 June 2026, Art. 79 marginal nos. 35 and 35.1: the outermost limit of sacrifice, whose location the prevailing view does not specify further. ↩

16. CISG Advisory Council, Opinion No. 20, Hardship under the CISG (Muñoz), 2020, in particular Rules 2, 4, 7, and 11 to 13, para. 7.1 on the absence of a fixed threshold, and para. 7.14 on the prohibition on diversion. ↩

17. UNIDROIT Principles of International Commercial Contracts 2016, Arts. 6.2.1 to 6.2.3 (hardship) and Art. 7.1.7 (force majeure); see Vogenauer, Hardship clauses und verwandte Klauseln in internationalen Handelskäufen (I), IWRZ 2021, 3. ↩

18. ICC Force Majeure and Hardship Clauses 2020, Hardship Clause paras. 1 and 2, ICC, March 2020. A German version from the ICC is available. ↩

19. ICC Hardship Clause 2020, para. 3 with options 3A, 3B, and 3C. ↩

20. Schwenzer/Köhler, CISG, 8th ed. 2025, Art. 79 marginal nos. 67 f.: unlike Article 79, hardship clauses also cover devaluation of performance (contra CISG Advisory Council, Opinion No. 20, Rule 5 and para. 5.1); their use does not amount to an international usage within the meaning of Article 9(2) CISG and binds only upon express or implied incorporation. ↩

21. BGH, judgment of 23 January 2013 – VIII ZR 47/12, para. 16 (economic clause in standard terms); Vogenauer, Hardship clauses und verwandte Klauseln in internationalen Handelskäufen (V), IWRZ 2021, 209 (210, 214): relevant clauses are generally recognized and take precedence over Section 313 BGB; national invalidity rules are regularly not engaged. ↩

22. Graf von Westphalen, Höhere Gewalt-Klauseln: AGB-rechtliche Pandora-Büchse in der Pandemie, ZVertriebsR 2020, 275 (277 f., 279). ↩

23. Guidance notes to the ICC Force Majeure and Hardship Clauses 2020: the Force Majeure Clause (Long Form) “can be included in the contract or incorporated by reference”; for the Hardship Clause the notes contain no separate incorporation formula, but no reservation against one either. There, the ICC requires the parties to choose one of the options (“the parties must choose”). The text of the clauses is freely available from the ICC. On the limits of the transparency requirement where a reference points to rules that are not accessible, Section 307(1) sentence 2 BGB. ↩

24. Sections 1(1) and 1(2) nos. 1 to 3 PrKG; on the clause types and on index-linked value protection in long-term contracts Baier/Krüger, Einkauf in der Krise, ZVertriebsR 2024, 343 (348) and Dishev/Hoffmann/Müller, NJOZ 2024, 97 (97). ↩

25. Baier/Krüger, ZVertriebsR 2024, 343 (348), on the transparency requirement, the bar on additional profit, and the duty to pass on cost reductions. ↩

26. Section 8 PrKG; Baier/Krüger, ZVertriebsR 2024, 343 (348). ↩

27. On the doctrine of frustration and the absence of judicial contract adaptation in the common law, Vogenauer, IWRZ 2021, 209 (211 et seq.); Davis Contractors Ltd v Fareham UDC [1956] AC 696; Gold Group Properties Ltd v BDW Trading Ltd [2010] EWHC 323 (TCC). ↩

28. On the French imprévision, Article 1195 Civil Code (since the 2016 reform); Accaoui Lorfing, Article 1195 of the French Civil Code on Revision for Hardship in Light of Comparative Law, RDAI/IBLJ 2018, 449. ↩

29. On eccessiva onerosità, Article 1467 Italian Civil Code: termination of the contract in principle, adaptation only on the offer of the party not affected. ↩

30. Baier/Krüger, ZVertriebsR 2024, 343 (349), on duty-to-talk clauses, their sanctions, and the involvement of a conciliator or commercial mediator. ↩

31. Frank-Fahle/Trost, Globale Krisen als Stresstest für internationale Lieferketten, RIW 2026, 326 (328 f.), on price-adjustment and retention rights and Section 313 BGB. ↩

32. On the allocation of tariff risk through the Incoterms (DDP on the seller, DAP and DPU on the buyer), Schneider/Becker, TLJ 2026, 185 (188). ↩

Reference: Poleacov, P. (2026). Hardship: the clause for the case force majeure does not solve. INN.LAW. https://inn.law/en/perspectives/hardship/

---