Amid this unprecedented crisis that is COVID-19, we have heard more and more about force majure clauses in contracts.  Force majure means “superior force, superior strength”  and is a clause included in contracts to protect the parties from unpredictable and unforeseeable events.  It usually includes terms like acts of god, terrorism, strikes, hurricanes and the like.

But here is the difficult question.  When can you invoke force majure, and is a pandemic like COVID-19 included?

First, when can you invoke force majure?   The answer to this is every lawyer’s favorite answer, it depends.  It depends what is included in the clause and how it would be interpreted by the courts.  I will say, based on past case law, the courts interpret force majure clauses extremely narrowly, meaning they do not leave a lot up to interpretation.  What this means for you is that it is unlikely you will be able to invoke a force majure clause unless the situation is specifically named in your contract in the force majure clause.

Now let’s move on to if a pandemic is included when trying to invoke force majure.  Again it will depend. You will be in the best spot if your clause actually includes the word “pandemic”, however most don’t.  Now that the World Health Organization has declared COVID-19 a global pandemic, you may be in a better position to invoke force majure, but it would be up to a court to decide.  Lastly, to invoke force majure the events have to be considered unpredictable and unforeseen. As the US is taking steps now to prevent the spread, the courts may say that you can’t invoke force majure because the event is now not so unforeseen or unpredicable.

So what’s next if you can’t invoke force majure?  Your best course of action will be to look at your contract, specifically clauses related to cancellations, termination, refunds, and rescheduling.  These clauses will be more likely to guide you in what steps are appropriate going forward. 

Need help reviewing your contract to find out what your options are? Feel free to reach out at hello@influencerlegal.co.