Recently, I authored a column on force majeure clauses. In that space, I explained how many businesses have recently been turning to force majeure clauses in their contracts for protection in light of the COVID-19 pandemic. While it is likely that businesses will think to add force majeure clauses to future contracts, there is also reason to believe the specific language of these clauses could be modified. Likewise, there are other changes to be expected in post-pandemic contracts.
As for force majeure clauses, businesses may take different approaches as to the construction of these clauses to ensure pandemics and the disruptions that accompany them are included in the language. The first and perhaps most apparent approach, is to include precise language in the clause, detailing the exact circumstances in which these clauses are applied and offer protection. Undoubtedly, if businesses choose to go this route, many more contracts will specifically include the words “pandemic,” “epidemic,” or something to that effect that would reasonably cover another wave of COVID-19 or the like.