Up until a week ago, most of you had never heard the phrase “force majeure.” However, I imagine that since then many of you have dusted off your contracts to see if yours contains that clause.
What happens if the answer is no? Are you out of luck? Not necessarily. There is a doctrine called “impossibility of performance.”
Simply stated, the impossibility of performance doctrine is a form of judicial “gap filling” when a contract between parties fails to allocate risks occasioned by unforeseen events.
It is to be used sparingly. But it has been around for a long time. To go back to the beginning, a court in 1863 said “in contracts in which the performance depends on the continued existence of a person or thing, a condition implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance.”
While I wouldn’t go so far as to say “no force majeure clause, no problem,” under our current circumstances there are things you can say and do.
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