GK Quarterly | March Special Edition – Force Majeure

coronavirus: a global force majeure

Godfrey & Kahn attorneys have consulted on numerous force majeure (FM) scenarios since the beginning of the 2019 novel coronavirus (COVID-19) pandemic. There are now virtually limitless resources available online analyzing the narrow legal interpretation of this issue.

At the risk of oversimplifying, here is the consensus as we see it:

1. Open set: If you are the party seeking an “excuse” from performance, your cause will be strengthened if an epidemic, pandemic or similar trigger to excuse performance is specifically called out by the FM provision in your contract. You may also be excused from performance if the provision is book-ended with a catch-all, i.e., that along with the list of specific triggers, performance is also excused by “… any other event, circumstance or condition which is not within the reasonable control of the affected party…”
2. Closed set: If a pandemic or similar trigger is not specifically called out in your FM provision and your provision is a closed set, then you may not have an excuse from performance within the contract and should consider other factors.

Read the full newsletter to learn more about strategic considerations when reviewing upstream (supplier), downstream (customer) or other contracts and FM considerations. 

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