Excused Performances: Force Majeure, Impracticability, and Frustration of Contracts

Abstract

This Report is written at a time of intense suffering and uncertainty,sas a global pandemic spreads to the far corners of the world,causing untold deaths, sickness, crowded hospitals, supply shortages, business closures, disrupted supply lines, and other distressing conditions. In response to this crisis, a flurry of governmental decrees have been imposed at all levels, shutting down restaurants, theatres, and schools, prescribing masks, vaccinations, distancing, telework, and so forth. Given the wide scope of the Questionnaire which I was asked to answer, this Report will not focus on the pandemic and its effects on contractual enforcement in the United States, but at the same time the Report makes no attempt to escape or ignore the pall hovering over the international community. At various places, I have made incidental attempts to illustrate how the pandemic fits within the existing law on excused performances. Obviously, it is provoking a flood of cases in the courts, but this Report comes during the early phases of the judicial response, a time when the picture is far from complete and cannot be properly assessed. In a sense it is not anticipated that Covid 19 will produce fundamental doctrinal changes in the common law of the United States. Rather, it will produce changes and important insertions in the so-called force majeure clauses of future contracts, but those clauses are not the common law to which the Questionnaire is addressed, but rather the drafter’s reaction to it. It is to be expected, however, that this widescale crisis with all its human and economic repercussions may fortify and intensify our understanding of others’ laws. Since the phenomenon is global and all are affected, the comparative lawyers have an urgent duty to use this occasion to consider the laws and doctrines of other legal systemss.