Devine Millimet | NH Law Firm

COVID-19 – Force Majeure Clauses

COVID-19 – Now Is a Good Time to Look at Your Force Majeure Clauses

Authors: Kerry Battles & Keelan Forey

March 20, 2020

In the wake of the COVID-19 pandemic, businesses are now scrambling to meet the competing demands of their owners, employees, suppliers, partners, vendors, and customers.  In addition, businesses in the tourism and hospitality industries are seeing a record number of cancellations as businesses postpone events, and limit nonessential travel and as individuals are cautioned to observe social distancing and shelter in place.
During these challenging times, businesses should review the force majeure clauses that are contained in their contracts.  Form contracts which are used repeatedly may need to be updated,  and contracts occurring in the course of business or are even in place currently should be reviewed from this perspective.  “Force Majeure” is defined by Black’s Law Dictionary as “An event or effect that can be neither anticipated nor controlled.”  Contracting parties typically include force majeure provisions in their contracts in order to allocate risk appropriately among the parties for nonperformance while at the same time recognizing that some risks are hard to anticipate and are not the “fault” of either party.  As a result, many force majeure clauses list specific circumstances for which a party may be relieved of its performance obligations such as wars or strikes, as well as general language to cover unanticipated events such as Acts of God, disasters, and (evolving) government regulations.

A typical force majeure clause reads as follows: “No damages shall be due for a failure of performance occurring due to Acts of God, war, terrorist acts, riots, floods, fires, other casualties, government regulation, disaster, or strikes, any one of which make performance impossible.”  The language in bold font highlights events that the COVID-19 pandemic may fit within.  Since the COVID-19 pandemic was unforeseen, unless a contract was negotiated within the last couple of weeks it is highly unlikely that the contract’s force majeure provision would specifically list epidemics or pandemics, let alone COVID-19.  When specific causes are not expressly stated in a force majeure provision, the application of other more general terms in the force majeure provision must be considered.

In New Hampshire, courts have not had any substantial interpretation of force majeure provisions; therefore, it is unclear how they will rule as to whether contracting parties will be relieved from performance by relying on the more general language contained in their force majeure clauses.  Phrases such as “Acts of God” may prove to be insufficient.  Terms such as “government regulation” or “disaster”, if they are specifically listed in force majeure provisions, may be the strongest language to rely upon to classify the COVID-19 pandemic.  With the U.S. government’s ban on travel, and with state and federal government agencies shutting down across the country, arguably the COVID-19 pandemic can be classified as a “disaster” and the corresponding state and federal emergency responses constitute government regulation.

According to New Hampshire RSA 4:45, I: “The governor shall have the power to declare a state of emergency, …by executive order if the governor finds that a natural, technological, or man-made disaster of major proportions is imminent or has occurred within this state.”  On March 13, 2020, Governor Sununu declared a state of emergency due to the COVID-19 pandemic and on March 16, 2020 issued Emergency Order #2 prohibiting scheduled events with fifty or more persons via emergency order.  Governor Sununu has subsequently issued additional emergency orders, see Likewise, on the federal level, On March 13, 2020, President Trump declared a state of emergency and, in addition to other federal agencies, offered guidance on the COVID-19 pandemic that includes social distancing.

These events lead us to conclude that the COVID-19 pandemic and subsequent federal and state responses could be considered force majeure events if (i) the force majeure provisions specifically list terms such as “Coronavirus,” “COVID-19,” “pandemic,” “epidemic” (or like terms) or (ii) the force majeure provisions contain general terms such as “disaster” or “government regulation.”  Since force majeure language may vary from contract to contract, to properly determine your contractual obligations and liability in light of the COVID-19 pandemic, it is important to review the specific force majeure language of each contract with your legal counsel.

Should you need any assistance interpreting your force majeure provisions, please contact Kerry Battles via email at or via telephone at (603) 695-8664.

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