In the new reality where we find ourselves, many people have reviewed their contracts to see if there is a “force majeure” clause that will excuse performance until life returns to normal. What if your contract doesn’t have that clause? The next step is to rely on the doctrine of “impossibility of performance.” This is a form of judicial “gap filling” when a contract between parties fails to allocate risks occasioned by unforeseen events.
Is there any other legal “jujitsu” that you may be able to use? How about something called the doctrine of “frustration of purpose”? This is when an unforeseen event undermines the principal purpose for entering into the contract. Here is an example that will explain it simply. You lease a storefront to sell something. You expect customers to come in to your store so you can pay your landlord. Now, you have had to shut the doors. No customers, no money. Clearly, both you and the landlord expected that you would have customers. The purpose behind the lease has been frustrated.
Frustration of purpose is what is known as an “affirmative defense.” It won’t prevent the landlord from suing you, but you will find a sympathetic ear with any judge listening to why you didn’t pay, particularly if you were current when you had to close the doors.
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