No Force Majeure Clause? Other Potential Options to Excuse Contractual Performance Under US Law in the Face of COVID-19

Published: 13 Mar 2020 Average Rating: unrated Print

Author: Baker McKenzie

The rapid spread of the novel coronavirus disease 2019 (COVID-19) and the varied government responses thereto have caused significant disruption to commercial operations and relationships.

Some companies are considering whether the outbreak constitutes a force majeure event, but what if your contract does not include an express force majeure clause? Before concluding that there is nothing that you or your contracting counterparty can do when facing disruptions as a result of COVID-19 (or a crisis event generally), take a close look at the applicable law. There may be other options available under US law to excuse non-performance of a commercial contract in the face of a crisis, though it may be difficult to prevail under these alternative theories.

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