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William Grae of Chartwell Law (Photo: Courtesy Photo) William Grae of Chartwell Law (Photo: Courtesy Photo)

Few courts have ruled, to date, on claims that the pandemic itself and the response of civil authorities to it constitute sufficiently unforeseeable circumstances to nullify contracts and excuse nonperformance. These arguments have ample visceral appeal but cannot be reconciled with the last 15 years of current events and well-established precedent. Although the specific emergence and mechanism of the COVID-19 pandemic may have been unforeseen, the possibility of widespread pandemic and economic disruption was anticipated by the medical, legal and risk-management communities. Unless courts choose to overtly recognize a “COVID-19 exception,” well-established legal precedent in most jurisdictions accordingly require rejection of arguments that delay due to the current pandemic was sufficiently unforeseeable to justify nonperformance absent an applicable force majeure clause.

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