We are all now familiar with terms such as “self-quarantine” and “social distancing” that just a few weeks ago, would have triggered a confused look. In the United States, cities have ordered residents to stay at home, and counties have ordered the closure of “nonessential” retail businesses, beaches, parks and recreational venues. These restrictions have forced individuals and businesses to adapt their daily routines with no clear end in sight. Many are left wondering whether the economic fallout that follows will excuse performance for contracts they no longer need or can no longer fulfill. The most reasonable response would be for tenants, landlords, lenders, and insurance carriers to work with each other to create a resolution that is equally painful for all. Of course, if most people were reasonable, we lawyers would most likely be out of a job.

During these uncertain times, the first place many will look to is the force majeure clause buried at the end of their contracts with other boilerplate provisions. A force majeure clause excuses performance for one or both parties due to an extraordinary event. These events are primarily “Acts of God.” Courts have interpreted an act of God to be limited to extreme natural weather events. Given this narrow interpretation, a health pandemic is not an act of God, or is it?