Competing Business Definition

A Competing Business Definition clause within a force-majeure context attempts to define what constitutes a "competing business" for purposes of determining whether force-majeure relief applies or is excluded. Force-majeure clauses typically excuse performance when unforeseeable, extraordinary events (like natural disasters, pandemics, or wars) make performance impossible or impracticable. However, this clause creates a carve-out or special definition: it may exclude force-majeure protection if the triggering event affects a competing business differently, or it may define "competing business" in a way that determines whether certain parties qualify for relief. This is problematic because it conflates two distinct contract concepts—force-majeure (which should be neutral and apply equally) and competitive positioning (which is a separate commercial concern). The clause creates ambiguity about when relief applies and may unfairly advantage one party over another based on competitive status rather than the nature of the force-majeure event.

Avoid mixing force-majeure provisions with competitive business definitions. If you must address how force-majeure affects competitors differently, do so in a separate, clearly labeled section with explicit examples. Ensure that force-majeure relief is defined objectively (based on the event itself, not the parties' competitive relationship) and applies equally to all parties unless there is a compelling, clearly articulated business reason for differentiation. If you are the disadvantaged party, push back strongly and propose that force-majeure relief be determined solely by whether performance is genuinely impossible or impracticable, regardless of how competitors are affected.