Despite the upending of commerce these days due to the Covid-19 virus new commercial and consumer contracts continue to be entered into. And existing contracts are being administered and monitored. Both situations can involve concern about required contractual performance given changes in the commercial and financial world because of Covid-19 curtailments. Each involves a consideration of conventional contractual concepts and principles.

From a planning and offensive standpoint, anyone entering into a new contract today should give consideration to the inclusion of contingencies, (i.e. conditions precedent), that regulate, manage and condition obligations for future performance based upon uncontrollable circumstances such as the fall-out from Covid-19. Appropriate drafting can take care of this. More generalized express contingencies and implied conditions based on contractual principles and concepts may well afford protection, but it is generally best to focus on the particulars when known. The use of contractual conditions precedent or contingencies is commonplace in most business and other contracts.

On a defensive basis a party already bound by contractual obligations may come to have concern about its ability to perform, possibly even breach or default, as a result of Covid-19 circumstances that are totally beyond its control. If the contract does not include specific contingencies or conditions that guard against this, general principles of contract law may afford some relief and defensive protection. These include conventional contractual concepts such as force majeure, impossibility of performance, frustration of purpose and related concepts. Each has some similarity, but also some differences. All are designed to afford relief from, and defensive protection against, contractual non performance resulting from circumstances that are outside of and beyond the control of the contracting party. Typically these are things which result due to forces of nature, governmental action, or some other calamitous uncontrolled event

These are general comments designed to familiarize and educate. Any particular situation requires careful evaluation of the particular circumstances and legal advice should be sought as needed.

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Richard Grant is a founding member of Grant Fridkin Pearson, P.A. and has practiced law in Southwest Florida since 1979. He has been board certified in real estate by The Florida Bar since 1987, and has an AV rating from Martindale-Hubbell. His areas of concentration are real estate development and financing, real estate and business acquisitions and mergers, corporate and partnership law, construction law, condominium law, and real property titles and land use. Richard Grant has been recognized as The Best Lawyers in America “Fort Myers Area Best Lawyers Real Estate Lawyer of the Year” for 2009, 2013, and 2016 and “Fort Myers Area Best Lawyers Corporate Lawyer of the Year” for 2011 and 2015.