Q:

Does the Coronavirus enable you to invoke a Force Majeure clause in your contracts under civil law?

icon

Rachel Amos
The Senate
01 Apr 2020

A: SenseCheck

  • 0 Yes
  • 4 Unclear
  • 0 No
SenseCheck complexity

Newest Answer Oldest Answer

  • 09 Apr 2020
  • Unclear

    Complex

    I believe there are currently conflicting rules.: Many contracts are silent on viruses and disease even in a force majeure clause, and many insurers have had specific carve outs requiring actual physical damage to occur in order to invoke any sort of business interruption claims.

    icon

    Sarah Gold
    Gold Law Firm

  • Comment

  • 09 Apr 2020
  • Unclear

    Complex

    I think this is organization specific and I can’t generalize.: It depends on the wording of the contract. Key aspects of determining whether Covid-19 can be considered a force majeure event are: whether the contract expressly mentions pandemics/epidemics in the force majeure clause; testing foreseeability; and establishing causation between the pandemic and lack of performance.

    For a longer and more detailed set of points that can help to establish whether force majeure is appropriate a useful briefing note has been issued by Clifford Chance.

    https://www.cliffordchance.com/content/dam/c…

    icon

    Liam Patell
    University of Oxford

  • Comment

  • 07 Apr 2020
  • Unclear

    Simple

    I think this is organization specific and I can’t generalize.: Depends on the drafting of the relevant force majeure clause.

    icon

    Adrian Smith
    The Senate

  • Comment

  • 02 Apr 2020
  • Unclear

    Complex

    This is an open question and cannot be answered yes / no / unclear. Please re-pose as a closed question like this ...: Rachel
    I obviously do not have the answer (would not pretend to have the skill set required), but I just finished a webinar conducted by one of our state legislators where we discussed business interruption clauses. Although at first pass, the claims are being "denied", the comment was made that Congress is looking at the issue along with even considering a legislative solution. It was a very soft conversation - nothing definite - but I know I have already had the question asked by a small business in the tourist industry who essentially will not operate going into their season and for the remainder of the year.

    icon

    Claudia Raessler
    Raessler Law, P.A.

  • Comment