Thank you for sharing!

Your article was successfully shared with the contacts you provided.

In the COVID-19 world of government-ordered shutdowns of nonessential trade and commerce, companies have found it impossible or impracticable to perform their contractual obligations, which will likely lead to a wave of breach of contract litigation. While the scale and nature of the COVID-19 pandemic appear to be unprecedented, this article highlights the principles courts have traditionally looked to in addressing claims that nonperformance of contracts should be excused because of external events.

Contractual Force Majeure Clause. Does the contract at issue include a force majeure clause? A force majeure clause “excuses nonperformance when events beyond the control of the parties prevent performance.” Harriscom Svenska, AB v. Harris, 3 F.3d 576, 580 (2d Cir. 1993). Force majeure clauses vary in their specific language, but typically list such events as strikes, boycotts, war, governmental laws or regulations and, often as a catch-all for unforeseen events, “acts of God.” If the contract does contain such a clause, it will determine the extent to which non-performance will be excused, subject to the standard rules of contract construction. Kel Kim v. Central Markets, 70 N.Y. 2d 900, 902-03 (1987) (“Ordinarily, only if the force majeure clause specifically includes the event that actually prevents a party’s performance will that party be excused.”).

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Law Firms Mentioned


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.