Force Majeure and the Coronavirus: Exposing the “Foreseeable” Clash Between Force Majeure’s Common Law and Contractual Significance

Robyn S. Lessans

COVID-19 presents unique challenges and opportunities for modern contract jurisprudence. Due to the social, political, and economic upheaval, masses of contracting parties are seeking an “out” to their contractual obligations via exculpatory “force majeure” clauses. The implications of this one little clause cannot be overstated. In some cases, hundreds of millions of dollars rest upon the construction of a few words in the oftenoverlooked, boilerplate language of the force majeure clause. However, force majeure as a legal doctrine is woefully underdeveloped, and in many states there is little to no state law interpreting these clauses. Courts that have never interpreted the force majeure clause, or have previously given it a cursory review, now must make important interpretative decisions. These choices may determine which businesses survive disruptions in performance caused by COVID-19. Even more broadly, these choices will shape force majeure construction and interpretation in a post-COVID-19 world.

This Comment highlights a largely unexplored area of force majeure jurisprudence: the unclear and conflicting relationship between force majeure as a contractual tool and force majeure as a term of common-law significance. At common-law, force majeure was traditionally defined as an unforeseeable event that prevents compliance with contractual obligations. By contrast, modern contract jurisprudence developed an increased reliance on force majeure clauses, in which parties identify specific events that may excuse nonperformance. These force majeure clauses do not need to be unforeseeable to be enforceable.