Frank Burke, a panel member of ADR Services, Inc. (Photo: Courtesy Photo) Frank Burke, a panel member of ADR Services Inc. (Courtesy photo)

The COVID-19 pandemic and a series of government shutdown orders have negatively impacted many contracts and commercial leases, either preventing or slowing performance and upending the expectations of contracting parties. As resulting contract and lease actions enter the court systems, the parties and the court will have to unravel complex facts, causation and allocation of risk of loss issues impacting performance often leading to losses for both parties. We will examine how these actions might be approached and resolved by settlement by applying a series of contract performance doctrines that inevitably arise during these types of situations: force majeure, impossibility, impracticability, commercial frustration of purpose, and material adverse change or effect clauses.

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