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OWM Law Special Newsletter March 2020

You may have heard of force majeure, a common clause in contracts that excuses a failure to perform when the contract cannot be performed due to extraordinary events or circumstances beyond the control of the parties. Most instances where force majeure apply are less than clear and complicated; for that reason an attorney should be involved at the earliest possible time to review the issues.

A party seeking shelter in a force majeure clause should know that in every good contract, there is implied a promise of good faith and fair dealing, and thus, the norm is that performance of a contract is expected, i.e., promises are to be kept. Should a party believe the facts and circumstances of a particular situation might excuse their performance, the party should look closely at the language of their contract with their legal counsel. For instance, and of particular importance given recent world-wide events, does the contract include an “epidemic” or “pandemic” as an occurrence that would fall under force majeure?

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