Force Majeure and Impossibility of Performance in the COVID-19 Present: A Practical Understanding


CLE credits earned: 1 GENERAL (or 1 LAW & LEGAL for WA state)

The contractual force majeure clause, once a sleepy afterthought buried in the “Miscellaneous” section of most contracts, has been brought to the front burner by the COVID-19 pandemic. Drawing on examples from throughout the country and across practice areas, we will review the elements of a contractual force majeure clause, how they are interpreted, and how the related common law doctrines of impossibility/impracticability of performance and frustration of purpose might excuse one or both parties to a commercial agreement from performing their obligations due to the ongoing pandemic. And if they do, for how long?


Key topics to be discussed:

•   Force majeure; common law defenses of impossibility/impracticability of performance
•   Frustration of purpose; a court’s role in applying these doctrines to current pandemic
•   Future attempts to revive U.S. economies

Date / Time: June 24, 2020

•   3:00 pm – 4:00 pm Eastern
•   2:00 pm – 3:00 pm Central
•   1:00 pm – 2:00 pm Mountain
•   12:00 pm – 1:00 pm Pacific

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•   Live Video Broadcast/Re-Broadcast: Watch Program “live” in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for “live” CLE credit.
•   On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 5 business days after the original recording date and are view-able for up to one year.
Closed-captioning available upon request

Select your state to see if this class is approved for CLE credit.

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Original Broadcast Date: May 1, 2020

Ed O’Toole, Esq. is a commercial litigation partner in Venable’s New York office. With nearly thirty years’ experience litigating over disputed contracts and commercial relationships, Ed brings a common-sense approach to dispute resolution aimed at helping to fix broken business arrangements. But if reasonable solutions cannot be reached, he will help guide clients through trial or arbitration.

Anne Gerson, Esq. is counsel in Venable’s nonprofit practice, based in Washington D.C. She functions as an ‘outside general counsel’ for many nonprofits, helping them navigate everyday legal challenges as well as extraordinary events such as mergers, asset transfers, and audits.

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Section I. Introduction to force majeure

Section II. Impossibility/impracticability/frustration of purpose — Elements of defenses

Section III. Contract examples

Section IV. Case illustrations from 9/11 and the 2008-09 “Great Recession”

Section V. The potential extent of forgiveness of performance

Section VI. Key takeaways