Businesses are facing increasingly significant concerns about what remedies are available to deal with the disruption of commercial contracts given the drastic economic impact of the COVID-19 pandemic.
Here, partner Selina Nutley explains—
FM is a way for a party to a contract to exclude liability where they fail to perform a contractual obligation due to an event beyond their control—a FM event.
FM must be expressly included in a contract, and the clause will be strictly interpreted. It covers events which—
While each clause is different and must be interpreted on a case by case basis, FM events usually include extreme weather events, riot, war, invasion, government or regulatory action, including strikes, terrorism or the imposition of an embargo. A FM clause does not often expressly cover a global health emergency, pandemic or epidemic, although these types of events may be covered by a catch all phrase such as 'any other event outside the reasonable control of the party'.
Contracting parties must be careful in declaring the COVID-19 pandemic a FM event and cease performance of their obligations. A party who incorrectly declares a FM event may risk repudiating the contract, entitling the other party to a right to terminate the contract and/or claim damages.
It is important to bear in mind that a party is unlikely to be relieved from performance of obligations as a result of a FM event just because compliance is more expensive, difficult, or less commercially desirable.
If you believe you have a FM claim you must promptly notify the other party of the FM event, state your claim for relief from performance, and provide evidence of the FM event and its impact on your performance. If you fail to give prompt notice you may be liable for losses suffered by the other party, or be taken to have waived your right to rely on the clause. You must also use your best efforts to mitigate the effect of the FM event or risk the FM clause not coming into effect.
It is important to note that a FM clause will not usually apply—
If you can successfully rely on a FM clause, then, depending on the individual clause—
However, it is important to note that the occurrence of a FM event will not automatically result in the contract being terminated. Rather, depending on the precise terms of the clause, it may only result in the suspension of the parties' obligations during the FM event.
If a FM clause is not included in the contract, or the FM clause does not adequately cover pandemics such as COVID-19, then you may be able to discharge the contract through 'frustration'.
Frustration operates where an intervening post-contractual event occurs through no fault of the parties, which—
It is important to note this remedy has limited application and can be difficult to establish. Frustration will not apply—
If you are concerned about your business and how it will continue to fulfil contractual obligations in the current COVID-19 disruption, we recommend you consider—
Our lawyers can answer your queries about force majeure and frustration and help step you through what you need to do next.