Skip to Content
Confidential Consultations 612-260-5109

Has COVID-19 Caused a Contract Breach?


Most commercial contracts contain a Force Majeure (or, “act of god”) clause that excuses performance under the contract if there is an event that is beyond the parties’ control that makes it difficult or impossible to honor the contract. “Force Majeure” literally means “superior force.”

Typical Force Majeure clauses, although each one is usually different, include language somewhat like the following:

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from the following force majeure events: (a) acts of god; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; (i) shortage of adequate power or transportation facilities; and (j) other similar events beyond the reasonable control of the party impacted by the Force Majeure Event.

As you may have noticed, COVID-19, coronavirus, and a pandemic aren’t included in this list. So, does it still apply and excuse or allow a delay in performing under the contract?

In typical lawyer fashion, the answer is: Maybe. First, we would want to see if it is covered under any of the specified terms in the clause, such as 1) Acts of god; 2) government order or law; 3) action by any governmental authority; 4) national or regional emergency; 5) strikes, labor stoppages or slowdowns, or other industrial disturbances; and 6) other similar events beyond the reasonable control of the party impacted.

Most courts define Force Majeure clauses narrowly so your Force Majeure event would need to fall squarely within the common meaning of the term. It can be reasonably argued that pandemic falls under national or regional emergency and, if a governmental order for people to stay home or be quarantined is in place, then a “government order or law” may prevent you from performing your obligations under a current contract.

But what about act of god? A bolt or strike of lightning is certainly an act of God. But if a virus is manufactured by man, and I am not implying anything about the source of COVID-19, would that still be considered an act of god if a pandemic results from the manmade virus?

Acts of God

An “act of God” means generally an “unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.” 42 U.S.C.A. § 9601(1). Certain cases have held that an unprecedented cold spell that caused pipes to burst and spill was not an “act of god”; neither was a storm at sea that caused some of a ship’s contents to be lost overboard when the Captain and crew knew what the weather forecast was; and neither was a loss due to heavy rainfall when the rainfall was the result of normal climate conditions.

What the above examples have in common and what the courts will look to is foreseeability. When analyzing a catchall phrase like “act of god” or “other similar events” an event not listed may be included when it was not reasonably foreseeable at the time the contract was signed that the event could occur.

For instance, when Major League Baseball threatened to use “contraction” to kill off the Minnesota Twins franchise, a lawsuit was started over the terms in the Twins lease agreement for playing in the Metrodome. In that case, the court did not excuse the Twins from playing in the Dome because “contraction” was not listed in the Force Majeure clause. The clause only referenced strikes, an act of God, a natural casualty, or a court order. (Metro. Sports Facilities Comm'n v. Minnesota Twins P'ship, 638 N.W.2d 214, 219 (Minn. Ct. App. 2002).) In other words, if COVID-19 is currently having an impact on your ability to fulfill a contract (causation is required to be proven too), then to be reasonably certain that your Force Majeure clauses apply right now, they better list as a specified term “pandemic.”

Consult with MKT Law, PLC for Legal Assistance

There exist many other factors that will play into the applicability of a Force Majeure clause in excusing a breach of a contract or a party’s inability to timely perform under an agreement. Consult MKT Law to learn more about your contractual rights and responsibilities in these uncertain times.

Contact our firm online or call (612) 260-5109 to reach out to an attorney who can help.

Share To: