In the complex legal landscape of the United Arab Emirates, force majeure represents a critical doctrine that can significantly affect contractual relationships in the real estate sector. Translating literally to “superior force”, force majeure refers to unforeseeable events beyond the control of contracting parties that excuse the non-performance of the relevant contractual obligations subject to the satisfaction of certain statutory conditions. For landlords, tenants, developers, and investors operating in the UAE’s dynamic property market, understanding how this doctrine applies to lease agreements and other real estate contracts is essential for managing risk effectively.
The Legal Framework: UAE Civil Code Article 273 (soon to be repealed and replaced by Article 236 of Federal Law No. 25 of 2025)
The foundation of force majeure law in the UAE lies within Federal Law No. 5 of 1985, commonly known as the UAE Civil Code (soon to be repealed and replaced by Federal Law No. 25 of 2025). Unlike common law jurisdictions where force majeure exists purely as a creature of contract, the UAE has codified this doctrine as a matter of statute. Article 273 of the Civil Code provides the principal legal framework, stating that in bilateral contracts, if a force majeure event supervenes which makes performance of the contract impossible, the corresponding obligation shall cease, and the contract shall be automatically terminated.
The critical threshold established under Article 273 (Article 236 of Federal Law No. 25 of 2025) is the impossibility of performance. UAE courts, including the Abu Dhabi Court of Cassation, have consistently interpreted this requirement strictly, holding that the event must render performance absolutely impossible rather than merely more difficult, costly, or commercially burdensome. In addition, and according to relevant authorities¹, force majeure can only be invoked if the event is beyond the control of the party, unforeseeable at the time the contract was signed, and unavoidable despite reasonable precautions. The Abu Dhabi Court of Cassation has emphasised that force majeure must be an unforeseen event that makes performance absolutely impossible, and not simply more onerous, for all parties,.
Accordingly, for a valid force majeure claim under UAE law, three essential elements must be established:
- Unforeseeability (the event could not have been reasonably foreseen at the time the contract was concluded);
- Unavoidability (the event must be beyond the party’s control and could not have been prevented through reasonable means);
- Impossibility (the event must have rendered contractual performance absolutely impossible).
Force Majeure in Real Estate Sale Agreements and Lease Agreements
In the context of real estate transactions and commercial leases, force majeure provisions carry particular significance. Commercial lease agreements throughout the UAE commonly contain force majeure clauses that address scenarios such as natural disasters, wars, acts of terrorism, and government-mandated shutdowns. These provisions typically excuse the performance of obligations when unforeseen circumstances arise that prevent either landlord or tenant from fulfilling their contractual duties.
However, an important distinction applies to monetary obligations. Most commercial leases explicitly provide that force majeure does not excuse the payment of rent. This principle typically operates in circumstances where the landlord continues to fulfil its obligation of making the property available for occupation, but the tenant is unable to operate its business due to an external event such as a government-mandated shutdown. In such cases, the obligation to pay rent is generally treated as separate from the tenant’s operational obligations, meaning that the tenant may still be required to fulfil its rent payment obligations notwithstanding its inability to conduct business from the premises. However, where a force majeure event renders the landlord unable to perform its own obligation of making the property available for occupation (for example, where the property is completely destroyed or rendered completely inaccessible), the tenant’s corresponding obligation to pay rent may no longer subsist, as the landlord itself has failed to perform its reciprocal obligation under the lease. This distinction between the continued availability of the property and the tenant’s ability to operate from it carries significant implications for both parties when assessing their respective rights and obligations during periods of business interruption.
Where a force majeure event does occur, real estate contracts may provide for the early termination of the lease. Acts of war, terrorism, and natural disasters are typical scenarios that could trigger a force majeure clause. If such circumstances render continued occupation or use of the property impossible (absolute impossibility), either party may be entitled to terminate the agreement without liability.
Frustration of Contracts
In English law, the doctrine of frustration operates alongside force majeure, though the two concepts are distinct. While force majeure typically requires absolute impossibility, the frustration doctrine addresses circumstances where performance has become radically different from what was originally contemplated. The doctrine of frustration is a narrow doctrine but requires a higher threshold than force majeure. At common law, frustration may apply where an extraneous factor outside the parties’ control renders the purpose of the contract fundamentally undermined.
Article 249 of the UAE Civil Code (as noted above this Civil Code will soon be replaced by Federal Law No. 25 of 2025 in particular Article 224 of Federal Law No. 25 of 2025) introduces the related concept of “exceptional circumstances” or hardship. This provision applies when performance is not impossible but has become excessively onerous due to exceptional, unforeseeable circumstances of a public nature. Unlike force majeure, Article 249 does not terminate the contract but instead grants courts discretionary power to adjust obligations to a reasonable level. This distinction is particularly relevant for real estate contracts where economic downturns or market fluctuations may make lease terms burdensome without rendering performance truly impossible.
Termination of Contracts Under UAE Law
The termination of contracts in the UAE, including real estate agreements, is governed by Articles 267 through 273 of the Civil Code (Articles 232 through 238 under Federal Law No. 25 of 2025). Under this framework, a contract can be terminated by mutual consent, court order, or operation of law (including force majeure). For construction and real estate contracts specifically, Article 892 (Article 834 of Federal Law No. 25 of 2025) provides that muqawala (construction) contracts terminate upon completion of work, by mutual consent, or through court order.
Where force majeure renders performance wholly impossible, Article 273 (Article 236 of Federal Law No. 25 of 2025) provides for automatic termination without the need for court intervention or notice to the other party. In cases of partial impossibility, only the impossible portion of the contract is extinguished, and the remaining obligations continue in force. For temporary impossibility in continuous contracts such as leases, obligations may be suspended during the period of impossibility, with the creditor retaining the right to cancel the contract if notice is provided by the creditor to the debtor.
Wartime Considerations: Abu Dhabi and Dubai
While the UAE Civil Code applies uniformly across the emirates, certain jurisdictions have developed specialised frameworks that may affect the application of force majeure principles during times of conflict. In Dubai, the municipality issued Law No. 12 of 2020 on Contracts and Warehouse Management in the Government of Dubai, which came into effect on January 1, 2021. This legislation establishes detailed requirements for procurement, contract drafting, breach, payment, delay penalties, and force majeure for government contracts.
The Abu Dhabi Global Market (ADGM) free zone follows English common law principles, where force majeure clauses are interpreted more restrictively, and the doctrine of frustration serves as the primary mechanism for addressing impossibility of performance. In contrast, the Dubai International Financial Centre (DIFC) operates under its own contract regime pursuant to the Contract Law DIFC Law No. 6 of 2004 (as amended). Article 82 of that law provides that non-performance by a party is excused where it results from an impediment beyond that party’s control which could not reasonably have been foreseen at the time of contracting or avoided or overcome.
War and military conflict are expressly recognised as potential force majeure events across all UAE jurisdictions. However, parties seeking to invoke such provisions must still demonstrate that the specific conflict has rendered their particular obligations impossible to perform, not merely more difficult or commercially undesirable. Further, the party claiming force majeure bears the burden of proving that (i) the war could not have been reasonably foreseen at the time of the conclusion of the contract; and (ii) the effects of the war could not be avoided or mitigated by appropriate measures.
In Dubai Court of Cassation judgment 1 of 2024, the Court of Cassation affirmed that the outbreak of war between Russia and Ukraine constituted force majeure, thereby exempting the defendant from liability for non-performance of the shipping contract. The court applied the established legal principle that force majeure requires: (1) an event that was unforeseeable at the time of contracting, and (2) an event that makes performance impossible to prevent or avoid. The court found that the war was unforeseeable at the time the contract was concluded and made it impossible for the defendant to fulfil its shipping obligations to Ukrainian ports. Consequently, the defendant was not held to have committed any contractual fault, and the claimant’s claim for damages was rejected.
Practical Considerations and Drafting Recommendations
For parties entering into real estate contracts in the UAE, careful attention to force majeure provisions is essential. Well-drafted clauses should explicitly define qualifying events, establish clear notice requirements, specify the consequences of triggering the clause, and address the circumstances under which either suspension or termination may occur. Given the strict interpretation UAE courts apply to force majeure claims, parties should not rely solely on statutory provisions but should instead negotiate comprehensive contractual terms that provide certainty in the event of unforeseen disruptions.
The experience of the COVID 19 pandemic demonstrated that UAE courts prefer to adjust contracts under Article 249 (Article 224 of the Federal Law No 25 of 2025) rather than terminate them under Article 273 (Article 236 of Federal Law No. 25 of 2025) where performance remains possible, even if significantly impaired. This judicial preference for contract preservation underscores the high bar parties must meet when claiming force majeure as grounds for excusing performance or terminating real estate agreements in the United Arab Emirates.
1 Abu Dhabi Court of Cassation Judgment 512 of 2021;
Abu Dhabi Court of Cassation Judgment 1153 of 2023
Key Contacts
Andrew Thomson, Partner, Head of Real Estate, a.thomson@tamimi.com
Naief Yahia, Partner, Head of Dispute Resolution, n.yahia@tamimi.com
Mosaab Aly, Partner, m.aly@tamimi.com
Kirsty de Sousa, Senior Knowledge Lawyer, K.Sousa@tamimi.com
Zane Anani, Senior Knowledge Lawyer, z.anani@tamimi.com