COVID-19’s classification as a “pandemic” by the World Health Organization (“WHO”) will trigger a Force Majeure clause that expressly accounts for “pandemics.” However, the declaration of this current situation as a pandemic standing alone - without a reference to pandemics in a Force Majeure clause - will not automatically constitute a Force Majeure event justifying non-performance given how courts’ focus on whether the event is specified within the specific language in the agreement. Provisions that make no reference to pandemics, epidemics, or other similar events are likely to be insufficient for a Force Majeure defense due to COVID-19, unless, of course, courts change the analysis to account for the current situation.
Force Majeure provisions are by no means an easy out for parties seeking relief from contractual obligations in light of the COVID-19 Pandemic. Of course, an explicit reference to viruses, pandemic, or disease in a Force Majeure provision will give you a greater chance of protecting someone against non-performance. If there is only broad catch-all langue that you are relying on such as “including but not limited to”, this is likely not to be enforced or justify an excuse from performance.
However, this is all uncharted territory for everyone. Many different arguments will be crafted for the particular set of circumstances and the particular language of the applicable Force Majeure provision.
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