COVID-19’s Impact on Commercial Transactions and Disputes in the United States
The ongoing Coronavirus (COVID-19) pandemic is among the most devastating and disruptive forces in recent history. As a result of the emergency measures imposed by various governments, it has or will become impracticable or impossible for many parties to perform their contractual obligations – or at least some will claim as such. A common question in the wake of the pandemic will thus be whether a party should be excused for its non-performance.
The answer to that question will vary by the terms of the contract at issue, the particular facts surrounding the nonperformance, and the law of the jurisdiction involved. However, a party whose operations were compromised by the pandemic should seek to assess the applicability of the following defenses: force majeure, frustration of purpose, impossibility, impracticability and the material adverse change doctrines.
- Each of these defenses in the context of potential commercial contracts disputes arising out of the Coronavirus pandemic
- Common obstacles to invoking these defenses
- Similar defenses that may be available when a contract is governed by the U.C.C. or the C.I.S.G.
- Disputes over whether changed circumstances are sufficient to call off acquisition and financing transactions