COVID Research: Does the COVID-19 crisis constitute a force majeure?

Given the current global pandemic as a result of COVID-19, we at Alexi have decided to help by producing and distributing covid-related memos free of charge to help lawyers during these uncertain times. We’re calling this research series “COVID Research”.

We asked Alexi, Does the COVID-19 crisis constitute a force majeure, or, in the alternative, a material adverse change or material adverse effect?

Conclusion:

The applicability of a force majeure clause in a given situation will depend on its terms. Force majeure clauses vary from contract to contract and will specify the types of triggering events to which it applies, as well as the level of impact required to excuse performance (Atcor Ltd. v. Continental Energy Marketing Ltd.).

Force majeure clauses generally operate to discharge a contracting party when a supervening event beyond the control of either party makes performance impossible. The common thread among all force majeure clauses is that of the unexpected; something beyond reasonable human foresight and skill. (Atlantic Paper Stock Ltd. v. St. Anne-Nackawic Pulp and Paper Company Limited)...

For the full memo download here.

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