First, the contract must have a force majeure (act of God) clause that is crafted in a wide enough fashion to include an event like COVID-19. If the contract does not have a force majeure clause, the affected party may then rely on the common law principle of supervening impossibility. Ordinarily if a situation arises, without any act or fault of either of the parties to the contract, which renders the performance of an obligation by a party impossible, that party is excused from the failure to perform. It is important however to note that a party seeking to rely on this principle must show that the performance is really impossible and not just inconvenient, burdensome or economically heavy. So, a party can only invoke a force majeure clause if the consequences of the lockdown and/or the spread of the virus, renders contractual performance impossible.
