Force Majeure Clauses at the Age of COVID-19: How Should Courts Interpret Them and Why a Conservative Application is Necessary

Authors

Dorothy Swagler, Cleveland State University College of Law

Publication Date

12-9-2022

Abstract

A force majeure clause aims to define the scope of unforeseeable events that may excuse or delay a party’s performance. In the wake of the Coronavirus (COVID) pandemic, many parties to disputes attempted to turn to force majeure clauses written in boilerplate language. COVID is distinguishable, however, from other historical force majeure events because of its rapid global development and international economic impact brought upon by government restriction and access issues. In effect, these boilerplate clauses coupled with this novel pandemic, left parties in dispute ill-equipped to know whether their force majeure clause was enforceable. This resulted in a flood of litigation and how courts decide will impact not only the drafting parties, but the global economy and contract law. This Note provides a normative framework for courts to examine contractual situations affected by COVID. To provide guidance and stability in global businesses, this Note argues that courts should conservatively analyze force majeure clauses and rarely use them as legal excuses for contractual obligations, even in the face of COVID. A conservative analysis is necessary to uphold the integrity of contracts and protect the global economy. Such an analysis provides drafting considerations for lawyers because the issue of force majeure will remain relevant long after the age of COVID. Further, this Note provides a roadmap to prepare parties for events well beyond the current calamity.

First Page

45

Recommended Citation

Dorothy Swagler, Force Majeure Clauses at the Age of COVID-19: How Should Courts Interpret Them and Why a Conservative Application is Necessary, 11 Global Bus. L. Rev. 45 (2022)
available at https://engagedscholarship.csuohio.edu/gblr/vol11/iss1/6