Say that you’re having a commercial building constructed and that you signed the builder’s form contract after negotiating no more than price. You were probably told that construction would take a certain amount of time, but deep in that contract there is most likely a “force majeure” clause excusing the builder for delays resulting from events (natural or man-made) that the parties could not have anticipated or controlled. A tornado lifting the roof from a freshly framed structure would be a natural force majeure. A labor strike among truckers engaged in the delivery of materials to the building site would be a man-made force majeure. The typical effect of a contractual force majeure clause is the allocation or re-allocation of risk for delays or failures to perform owing to the intervention of overwhelming external forces.
If circumstances between you and the builder put you in a superior bargaining position, you may insist upon the polar opposite of a force majeure clause: a nearly punitive liquidated damages provision for each day that the job remains incomplete after a hard deadline; and an anti-force majeure clause thrown in for good measure. The esteemed freedom of contract generally allows us to allocate risk in such fashion. Given the contractual foundation of the force majeure concept, parties are free to contractually express what constitutes a force majeure. When the parties do so, there is little for the courts to do other than follow the stated intent of the parties.
While force majeure is a useful concept in contractual dealings where the contract in question bears a force majeure clause, the economic and societal chaos visited upon us by the coronavirus demands an expansion of its application. Even if done under a different name¹ force majeure (as a defense to tardy performance or nonperformance) should be available in the matter of contracts not bearing a force majeure clause and (perhaps) in other endeavors as well, particularly (as in child support or taxes) where a sum of money is due by a date certain.
Should force majeure toll a limitations period when courts are virtually closed and law firms are barely functioning, but when a complaint and summons can still be filed digitally? When will it be okay to commence evictions and foreclosures? What criminal statute (if any)² is applicable to the prosecution of those who violate the governor’s stay-at-home order? If you contract the disease after exposure at work, do you have a worker’s compensation claim? If your supervisor coughed in your face, do you have a cause of action outside of worker’s compensation? What if, for the family vacation, you prepaid for hotel accommodations adjacent to a giant theme park and then the theme park closed while your off-premises hotel did not? What are your chances of getting a refund? The coronavirus pandemic obviously deals death to many, sickness to many more, and isolation to us all. It will also have an impact upon the law. Lawyers need to get ready. But how remains to be determined.
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¹ It may be fair to argue that the (affirmative) contract defense of “impossibility” is (to a degree) an extension of applicability of force majeure under another name.
² A look at crimes from IC 35 revealed IC 35-45-21-3 requiring “carriers” of HIV/Aids to warn “persons at risk” but nothing was found respecting a violation of the governor’s stay-at-home order. Provisions in IC 16-41-9 pertaining to enforcement of a quarantine order from a “public health authority” are inapplicable to the governor’s Executive Orders, though such a violation would constitute a Class A misdemeanor. The popular offense of criminal recklessness as defined at IC 35-42-2-2 requires a reckless, knowing or intentional, act creating a substantial risk of bodily injury to another. An asymptomatic person flaunting a stay-at-home order commits no such offense. Likewise, the popular offense of disorderly conduct as set out at IC 35-45-1-3 has no prohibition against violating a stay-at-home order. The CLB found a LaPorte County prosecution for “Disobeying a Declaration of Disaster Emergency,” a Class B misdemeanor under IC 10-14-3-34. There the offense is declared to occur when a person “violates this chapter.” No mere citizen can violate that chapter; the chapter contains no mandate nor any prohibition applicable to a mere citizen.
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