Can a pandemic be used for the delayed performance of contract?

Author : Mayank Raj

Abstract –

Businesses all through the world will encounter contract issues because of the impacts of COVID-19 whether portrayed as a halt, closure, self-separation or isolate. The World Health Organization described COVID-19 as a pandemic. In the United States, lead representatives have summoned their state’s sacred position to sanction social separating measures, and, in certain examples, have closed down organizations characterized as “unnecessary.” Government pioneers all through the world have taken activities extending from comparable unimportant business terminations to exacting lockdown of their residents. These activities have made a few organizations close down, delivering them incapable to respect legally binding commitments.

The worldwide pandemic is affecting execution under agreements in an assortment of ways, including forbidding the satisfaction of commitments, postponing satisfaction, or baffling the motivation behind arrangements. Numerous organizations are confronting a twofold edged blade that has them, on one side, defaulting on a commitment under an agreement while, on the opposite side, confronting a client or customer that is defaulting on their commitments.

Execution or non-execution of contracting parties during the pandemic more likely than not will offer ascent to claims under power majeure conditions and disappointment of direction, impracticability and inconceivability regulations. Will the COVID-19 pandemic reason a gathering from execution under this condition or these regulations? There is no uniform brilliant line answer, and the result will rely upon authoritative language, the state law relevant to the arrangements, and industry practice.

Introduction –

Due to the COVID-19 Pandemic is being felt by industries across sectors around the world. The government around the world have ordered nationwide lockdown, restricted foreign travel, and sealed the internal border. There is no economic activity is done between the companies and the companies are under the huge financial burden with uncertainty over the performance of the existing commercial contract. Due to this, the great effect of the COVID-19 pandemic on parties and liabilities under commercial. Thus, the concept of Force Majeure and the existence of how to claim a force majeure clause could be interpreted.

What are Force Majeure and its concept?

Under the English Law, the Force Majeure is not explicitly conceptualized. It is not embedded under the common law. Force Majeure saw as interloper imported into the common law through its appearance in clause commercial parties. Force Majeure becomes a contractual right because it being a universally applicable concept in civil law. In countries like China and France it became a part of the legal system, Force Majeure is codified as a legal concept and courts have the power to declare events like COVID-19 as a Force Majeure.

Mainly, it an event in which the contracting party has no control over due to this contractual obligation that cannot be performed. To succeed the claim for it must be expressed in the contractual agreement. 

The particular event can be regarded as Force Majeure:

  • When the contractual provision for force majeure expressly or impliedly mentions the event as an event of force majeure.
  • When the contractual obligation is rendered incapable of being performed after the occurrence of the event.
  • When the parties have no control over the occurrence and continuance of the event.

Does the COVID –19 outbreak a constitute a Force Majeure-

In the above discussion, Force Majeure is an event that dependent upon a provision of contract. The Force Majeure event is a triggering event such as epidemic, lockdown, pandemic and outbreak of disease. The COVID -19 pandemic shall be deemed a force Majeure event. The intention of the parties have to be looked at when there is no relevant is specifically mentioned. The event included exhaustive & non-exhaustive is involved in it. In the non-exhaustive case it become difficult to argue and even though clause does not mentioned the clause epidemic and pandemic events, the parties nonetheless intended to cover the same.

In the past case such as SARS and Ebola have occurred but the law in relation to pandemic/epidemic and Force Majeure still not settled. There is hardly any case that can be considered further.

Contract with a Force Majeure clause –

Generally, there are two kinds of Force Majeure-

  1. Force Majeure such as war, governmental policies, flood, natural disaster etc are included in this list.
  2. All provision where no event is mentioned is catches in this.

The specific criteria of list mentioned in the clauses such as war, fire, flood and so on. A wider wording such as any cause that is beyond from our control. Clause with the list of particular events are mentioned like an epidemic or natural disaster or health emergence has been mentioned in the clause that will make it easier bring Force Majeure claims COVID –19 pandemic.

The entire clause mentioned in the contract such as “beyond the control of the party” or “unforeseen event” will make easier to interpreted to qualify COVID-19 pandemic to claim under Force Majeure.

Doctrine of Frustration –

Frustration means in a common law is that a party will an excuse for non-performance of a contract because that the party’s ability to perform has become severely compromised by an supervening event. It simply means that an impossibility with no excuse for a failure to perform a contract.

It essentially means that the contract has to come an end with the parities and are no longer liable to perform their contractual obligations. It applies when the contract become incapable to perfumed. Frustration can applied “change in law” in some situation. As we seen the world wide the government across the world trying to control the combat pandemic through strict measures such as lockdown, travel restriction & quarantine in the case the contact are incapable to perform contractual obligation.

As we see that both Force Majeure and Frustration of contract are essential mechanism for risk allocation. However, they both are different concept & application. Doctrine of Frustration is not available in the contract. If contract contain express Force Majeure provision will be arranged allocation risk between the parties.

Doctrine of Frustration will succeed, if the following criteria are satisfied:

  • In this, the contract is beyond the control the control of any party to the contract.
  • An event that occurred after the contract and party could not able to perform the contract.
  • An event that is physical & commercial impossible to fulfill the contract.

Consequences of Invoking Force Majeure claims – 

This clause depend on the obligation & under the contract which are performed. This consequences under the Force Majeure clause will affect parties rights and liabilities parties should make an valid and genuine region to enforce Force Majeure because a frivolous and hurried claim can adverse consequences. It will backfire and the opposite party rise for breach of contract or claim damages for non-performance. An extension of time to perform the obligation suspension of contractual performance for the derivation of Force Majeure under contractual remedies.   

Indian Position with respect to Force Majeure-

Indian Contract Act, 1872, refers to the term ‘Force Majeure’. Agreement containing an explicit or implied force majeure covenant covered by Chapter III and more specifically, Section 32 thereof which refers to ‘contingent contract’ contracts where performance is dependent upon the happening or non-happening of an event. Section 32 of the Indian Contract Act, 1872, “Section 32: Enforcement of contracts contingent on an event happening. Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened.”

In the light of the previously mentioned arrangement of law, for each agreement, it is needed to be found from the terms thereunder about whether the equivalent is an unexpected or restrictive agreement, or an unlimited or irreversible agreement. Notwithstanding, Courts have consistently held that Force Majeure statements are to be barely understood and the Courts try to decipher contracts carefully as far as specified arrangements concurred there under, with negligible intercession from the overseeing law.

Then again, absence of explicit meanings in a generally worded Force Majeure condition, may likewise not help a bothered gathering, as Courts have over and over communicated the need to decipher legally binding arrangements so as to make the agreement viable. Significantly, in the COVID-19 pandemic setting, a productive summon of power majeure will require proof for more than simple trouble.

It is impossible that for all agreements, COVID-19 pandemic and the ensuing public lockdown, will ipso facto, be treated as a Force Majeure occasion. Actually, the emergency is one of its sort, and no reasonable translation is predictable. Having said that, it is critical to comprehend that financial misery isn’t generally viewed as a Force Majeure occasion. Hence, undoubtedly each agreement will must be dealt with freely and the arrangements contained in that will itself be thought of and deciphered to check whether it will trigger the Force Majeure statement.

Another critical viewpoint to be investigated is imagine a scenario where the agreement doesn’t have a Force Majeure condition. In such cases, the influenced party can look for cures under Section 56 of the Indian Contract Act, 1872, by contending difficulty of execution by virtue of the normal catastrophe/pandemic. Notwithstanding, even for this situation, it must be set up that the difficulty is by reason of the COVID-19 pandemic, which the asserting party couldn’t forestall and that the equivalent isn’t self-initiated. Further, in taking the asylum of Section 56, regardless of whether a gathering would be effective under the watchful eye of the courts would rely upon the realities of the case concerning whether in the specific conditions, execution is delivered inconceivable.

What Should Be Done Now?

Audit all agreements for power majeure or other absence of execution or postpone arrangements and look for lawful exhortation early if necessary. Decide the financial impact of conjuring a power majeure or comparable arrangement on the off chance that it applies. Distinguish legally binding commitments that are influenced and separate those that are outlandish or may not be conceivable and which might be pardoned or stretched out because of deferral with zeroing in on execution explicitly identified with COVID-19. Distinguish legally binding “notice” prerequisites and promptly plan notice for those commitments influenced by COVID-19 remembering that documentation might be required. Audit protection arrangements for business interference or power majeure inclusion. Decide if help might be accessible under COVID-19 projects, for example, the Paycheck Protection Program (PPP), Small Business Debt Relief Program; Economic Injury Disaster Loans (“EIDL”), and potential tax breaks and delay of certain government finance charges. On the off chance that notice under a power majeure arrangement is gotten, inspect the asserted purpose behind nonperformance, regardless of whether such reasons fulfills the authoritative language under which non-execution is guaranteed, and whether “notice” necessities have been met.


Because of the COVID-19 pandemic, organizations and economies of nations worldwide have been antagonistically influenced. The administration of influenced nations have needed to turn out measures to battle the pandemic and forestall the spread of the infection  the lockdown in the Territory. Some different States in the nation have likewise reproduced this measure by announcing a lockdown on all business exercises aside from fundamental administrations, and there are signs that a public lockdown might be forced very soon. It is normal that this will put a strain on a great deal of organizations and agreements where laborers cannot go to work. Unquestionably, the COVID-19 pandemic will prompt a rush of questions concerning which gathering bears the dangers of non-execution of the agreement. From the prior, there are plainly key standards of law, which would help gatherings to decide the imaginable result of those debates.

It is imperative to take note of that just conjuring the authoritative power majeure condition or the precedent-based law precept of disappointment as reason for non-execution may not do the trick to pardon parties from satisfying their commitments under existing agreements, as every situation would be examined dependent on the concurred terms and the conditions of the gatherings. All the more along these lines, inappropriately summoning the power majeure proviso could itself add up to a penetrate and qualifies the other party for harms or an option to end the agreement all by itself. Essentially, conjuring the teaching of disappointment may likewise be financially bothersome in certain conditions, since its impact, paying little mind to the desires of the gatherings, is to finish every one of gatherings’ commitments under the agreement right away.