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The Courts Have Spoken: Lessons of the Covid-19 Force Majeure Cases

June 10, 2021 (29 min read)

By: Timothy Murray, Murray, Hogue and Lannis

The majestic New York State Supreme Court Building in Lower Manhattan has stood in regal watch over the tumult of the past century, a silent witness to every shade of humanity—from the disgraced movie mogul Harvey Weinstein, who was convicted there in 2020, to the revered jurist Benjamin Cardozo, who attended its dedication in 1927.

IT HAS BEEN A CRITICAL PLAYER IN COUNTLESS FILMS and television programs featuring characters that, just as in real life, span the spectrum of vice and virtue—from the mobster Barzini, who was shot on its steps in The Godfather, to Santa Claus himself, who stood trial there in the original Miracle on 34th Street. Courtroom 228 was the scene of the trial in the great morality play 12 Angry Men.

Lately, the grand old building is the epicenter of one of the greatest sagas in modern commercial jurisprudence, the COVID-19 force majeure cases—an avalanche of disputes over whether contractual performance should be excused due to the pandemic. Except this time, there are no villains or heroes, no morality plays, just tales of hapless folks trying “to negotiate a resolution that is painful but practical to insure that ‘on the other side’ there will be something left.”1

Up in courtroom 432, Justice Arlene Bluth of the Supreme Court of New York County has become the unwitting face of the COVID-19 force majeure cases. She has handed down a staggering string of well-reasoned COVID force majeure, frustration of purpose, and impossibility decisions involving commercial real estate—always empathizing with tenants unable to pay the rent because of pandemic-spawned market downturns but equally mindful that the landlord has its own obligations.2 When the parties themselves have not bothered to allocate the risk of a supervening event in their contract, the tenant is asking too much when it expects Justice Bluth to rewrite the contract because business is bad.3 In one case she cautioned a tenant raising the defense of frustration of purpose: “[I]magine a landlord who enters into a long-term lease, such as the one here, and then realizes a few years into the lease that the market rate for the leased premises far exceeds what the tenant is paying. Would that landlord be permitted to invoke the frustration of purpose doctrine? Of course not.”4 The same logic must prevail when the tenant suffers the market downturn, she said. Justice Bluth’s empathy evaporates when a party invokes the pandemic as a pretext to avoid its contractual obligations. In one case, she held that COVID-19 was not a valid excuse for failure to make payments under a settlement agreement since the failure predated the pandemic by almost a year. Her words were the judicial equivalent of an icy glare: “This Court can look at a calendar.”5 When another tenant “use[d] the pandemic as an excuse,” she said it was “an affront to the actual suffering of the many restaurants and businesses which were no longer able to pay their rent because of the pandemic.”6

Not all jurists bring such pointed clarity to these issues, but what the courts say in the COVID-19 force majeure cases is important. Courts tell us how to draft, and how to litigate in the COVID-19 force majeure landscape. The attorney who does not care what the courts say is like the pilot who refuses to learn about changes to the aircraft’s flight and navigation instruments—would you ride on that pilot’s plane?

For a much fuller discussion of these issues, see Corbin on Contracts: Force Majeure and Impossibility of Performance Resulting from COVID-19 (revised 2021 ed., pending publication at the time this article is being written). In this short article, I highlight some of the most important lessons of the COVID-19 force majeure cases.

Promises Generally Are Not Excused for Supervening Events

The first thing that every client who wants to declare force majeure due to COVID-19 needs to hear is that being excused of contractual obligations due to a force majeure event is the exception to the rule. That is not a feckless platitude—case after case attests that it is exceedingly difficult to be excused of contractual obligations, even in the worst pandemic in a century. “Generally, once a party to a contract has made a promise, that party must perform or respond in damages for its failure, even when unforeseen circumstances make performance burdensome . . . .”7

This means that force majeure should not be lightly invoked as a bargaining chip where it may not be applicable. If you declare force majeure on behalf of a client and it turns out that you were wrong, your client likely committed an anticipatory repudiation—a breach of contract that could subject your client to liability for damages and discharge the other party of its contractual obligations.8

Courts Honor Parties’ Allocation of the Risk of Supervening Events

To figure out if parties should be excused of their obligations due to a supervening event such as the pandemic, it is a mistake to start by looking to extra-contractual theories such as impossibility9 and frustration of purpose.10 You must start—and usually end—with the contract itself: did the parties somehow allocate the risk of the supervening event in their document? “[P]arties have broad discretion to allocate risks between them in a contract. . . . Only where there has been no contractual allocation of a risk should a court determine the allocation based on common law theories, such as impossibility and frustration of purpose.”11

Sometimes, The Contract Explicitly Says Whether a Party May Be Excused

Some contracts squarely address the force majeure event. When a student sued a study abroad program for switching to online and distance learning classes due to the COVID-19 pandemic, the court dismissed the action because the contract specifically excused defendant of responsibility for loss “occasioned by or resulting from . . . force majeure, acts of government [ . . . ] epidemics or the threat thereof, [and] disease . . . .” Further, plaintiff agreed to “assume all risk of any such problems which could result from . . . perceived or actual epidemics” that could “delay, disrupt, interrupt or cancel programs.”12

In another case, Phillips, an art auction house, contracted with JN to take a painting on consignment and auction it in May 2020. The contract’s force majeure clause allowed Phillips to terminate for, inter alia, a “natural disaster.” When Phillips terminated the agreement due to the pandemic, JN sued for breach, but the court dismissed the action, explaining: “It cannot be seriously disputed that the COVID-19 pandemic is a natural disaster.”13

On the other hand, many contracts explicitly refuse to excuse parties of certain obligations due to supervening events. In one commercial lease, both the pandemic and the government shutdowns that followed were construed as force majeure events, but the court refused to excuse the tenant of its rent obligations because the lease also said that force majeure events do not excuse the tenant from paying rent. Since the contract allocated the risks, the court refused to consider the common law theories of impossibility and frustration of purpose.14 Similarly, a restaurant was not excused of its rent obligations even during a COVID-ordered shutdown since the lease said that tenant’s obligation to pay rent “shall in no wise be . . . excused because Owner is unable to fulfill any of its obligations under this lease . . . by reason of . . . government preemption or restrictions . . . .”15 The same was true in the cases involving a gym16 and a funeral home.17

Sometimes the decisions are difficult to reconcile. In In re CEC Entertainment, 18 CEC, an operator of Chuck E. Cheese venues, filed a motion to abate rent payments for leases affected by COVID-19 government restrictions that curtailed the restaurants’ operations by prohibiting arcade games and limiting patron capacity. In one of those leases, a force majeure provision excused performance that was “prevented or delayed” by “unusual governmental restriction,” but not for “inability to pay any sum of money due hereunder or the failure to perform any other obligation due to the lack of money . . . .” The court held that the tenant was not excused of its obligation to pay rent despite the government restrictions.

But in In re Hitz Rest. Grp., 19 a force majeure provision excused a restaurant tenant’s performance that was “prevented or delayed, retarded or hindered by . . . laws, governmental action or inaction, orders of government.” It also said that “[l]ack of money shall not be grounds for Force Majeure.” Unlike the CEC case, the court held that the force majeure clause was triggered by governor’s order suspending on-premises consumption at restaurants. The court rejected the landlord’s argument that the tenant’s excuse was merely “lack of money” (which would not be an adequate excuse). “Governor Pritzker’s executive order shutting down all ‘on-premises’ consumption of food and beverages in Illinois restaurants is the proximate cause of [tenant’s] inability to generate revenue and pay rent.”

Courts Interpret Contracts to Mean What They Say

CB Theater sought to be excused of its lease payment obligations during the time that theaters in Florida were under COVID-19 shutdown orders. Article 59 of the lease stated:

If either party to this Lease, as the result of any . . . (iv) acts of God, governmental action . . . or (v) other conditions similar to those enumerated in this Section beyond the reasonable control of the party obligated to perform (other than failure to timely pay monies required to be paid under this Lease), fails punctually to perform any obligation on its part to be performed under this Lease, then such failure shall be excused and not be a breach of this Lease by the party in question, but only to the extent occasioned by such event.

The court held that Article 59 excused CB Theater from operating during the shutdown. Importantly, the parenthetical “other than failure to timely pay monies” did not apply to the excuse regarding “acts of governmental action” since it “is part of romanette (v) - the ‘other conditions’ phrase.” 20

In another case, MS Bank had an account with CBW Bank, and their agreement included this force majeure clause: “If a party is prevented, hindered, or unavoidably delayed from or in performing any of its obligations under this Agreement by an event beyond its reasonable control, such as compliance with a law or governmental order . . . , that party shall not be obliged to perform its obligations . . . .” The agreement also allowed CBW to terminate the agreement on 30 days’ notice, which is what CBW did. MS sought to enjoin termination, arguing that the COVID-19 pandemic made it difficult to find a replacement bank to perform the services it required. The court held that MS failed to point to any “obligation,” per the force majeure clause, that it was unable to perform. The court refused to expand what the parties themselves had agreed to.21

Since the goal of contract law is to give effect to the parties’ intentions,22 courts look to the entire contract, not just the force majeure clause, to figure out if the parties intended to allocate the risk of a supervening event. In one case, the parties entered into a court approved settlement that said Zapata “shall” pay Pinero $200,000.00 by April 1, 2020, with a built-in grace period allowing Zapata to pay by May 1, 2020, and to obtain refinancing on the properties by June 1, 2020. Failure to meet either obligation meant that Zapata would relinquish her interest in the properties to Pinero. Zapata claimed that the COVID-19 pandemic made timely performance impossible, and the trial court granted extensions. The appellate court reversed and held that the trial court improperly voided and rewrote the agreement. The contract set firm due dates with a single one-month extension without spelling out relief for force majeure events.23

Conditions Precedent Are Not Lightly Inferred

In Shin v. Young Yoon, 24 defendants moved to delay payments on a stipulated judgment for one year, claiming that economic hardship arising from COVID-19 made it impossible because they were not able to sell a certain hotel necessary to meet their obligation. The stipulated judgment stated that the sale of the hotel would fund a significant portion of their payments. The court refused to delay defendants’ payments, explaining that the sale of the hotel was not a condition precedent to defendants’ obligation to pay. Merely mentioning an intent to sell the hotel did not make it a condition precedent (a condition precedent is not lightly inferred), and defendants did not treat it as a condition precedent—they made some payments despite the failure to sell the hotel.

Clarity in Drafting Is Crucial

No judge has ever complained that a contract is too clear. In Gibson v. Lynn Univ., Inc.,25 a student sued the university after it transitioned to remote learning due to the COVID-19 pandemic. The university filed a motion to dismiss, citing the force majeure clause in its University Policies that provided as follows: “There will be no refund of tuition, [or] fees ... in the event the operation of the University is suspended at any time as a result of an act of God, strike, riot, disruption or for any other reasons beyond the control of the University.” But the plaintiff pointed to a disclaimer stating that the University Policies “do[] not create an express or implied contract.” Since it was not clear whether the University Policies were contractual in nature, the court denied the motion.

In Rudolph v. United Airlines Holdings,26 plaintiffs sued United Airlines seeking a refund (not just a credit) for fares after cancellation of flights in the wake of COVID-19. The conditions of carriage spelled out more than one type of involuntary cancellation: (1) “Force majeure” (where the passenger was not entitled to a refund): “Any condition beyond [the airline’s] control including, but not limited to . . . acts of God . . . .” (2) “Irregular operation” (where the passenger was entitled to a refund): This included cancellations “necessary or advisable by reason of . . . conditions beyond [United’s] control, (including, but not limited to acts of God, force majeure events . . . .).” The court denied, in part, United’s motion to dismiss because the agreement was ambiguous: irregular operation directly overlapped with force majeure—irregular operation included force majeure as part of its definition. The court explained: “Certainly, there must be some point where a Force Majeure Event ends, and . . . [an] Irregular Operation begins. And to the extent that boundary is unclear, the [conditions of carriage], drafted entirely by United, must be construed in Plaintiffs’ favor.ˮ

Subjective Inability to Perform (e.g., Financial Hardship) Does Not Excuse Performance

In case after case, businesses—often commercial tenants that service the public—have been economically devastated by COVID-19 market downturns. Contracts typically do not provide relief for the tenant when that happens, and where the contract has not allocated the risk, extra-contractual theories provide no defense for market downturns caused by the pandemic. Typical is RPH Hotels 51st St. Owner, LLC v. HJ Parking LLC,27 where a parking garage in the heart of Times Square sought to be excused of the default judgment entered against it stemming from its failure to pay rent during the COVID-19 pandemic. Justice Arlene Bluth wrote: “If a business that was permitted to operate throughout the pandemic (as opposed to others, such as gyms, that were forced to close for months) can assert a frustration of purpose or impossibility defense, then nearly every struggling commercial tenant could seek relief from their leases.” Suffering is widespread in the pandemic, she wrote, but “[t]he solution is not for this Court to ignore an otherwise-valid contract to the severe detriment of one party.”

In another case, Justice Bluth explained that “both the landlord and the tenant have undoubtedly faced significant hardship” due to the pandemic, but the parties did not agree to place the risk of the pandemic on the landlord. “The Court declines to step in and unilaterally modify the parties’ contract and tell the landlord that it should not be able to enforce the agreement it signed with a tenant.”28 There have been a plethora of such decisions in the past few months.29

Performance Is Excused Only if the Non-Occurrence of the Supervening Event Was a Basic Assumption of the Parties

Both Parties Must Share the Basic Assumption

In deciding whether a supervening event excuses a party’s performance, “the central inquiry is whether the non-occurrence of the circumstance was a ‘basic assumption on which the contract was made.’”30 In one case, Martorella agreed to purchase property and made a deposit that the agreement said he would lose if he failed to close. The contract said that Martorella “acknowledges that this Agreement contains no contingencies affecting [his] obligation to perform” (e.g., no financing contingency). Martorella did not tell the seller that he relied on his wife to help obtain financing. Before closing, Martorella’s wife contracted COVID-19 and became seriously ill, but the seller refused to delay the closing despite Martorella’s claims of impossibility. Martorella filed an action, which the court dismissed because Martorella had expressly assumed the risk of making the payment—there were no contingencies—and the health of Martorella’s wife was not a basic assumption on which the contract was made.31

Generic Leases Versus Leases Restricted to a Single Use

UMNV leased commercial space to Caffé Nero on condition that the premises could only be used to operate a “Caffé Nero themed café” and for no other purpose. When the governor banned restaurants from serving on-premises food or beverages due to COVID-19, Caffé Nero temporarily shut down its premises and stopped paying rent. UMNV terminated the lease and sued, inter alia, for back rent and for damages for the 12 years remaining on the lease. The court granted partial summary judgment in favor of Caffé Nero, concluding that Caffé Nero’s performance under the lease was temporarily excused due to frustration of purpose during the shutdown. Critical to the court’s holding was that “[t]he Lease provides that Caffé Nero could use the leased premises only to operate a café with a sit-down restaurant menu ‘and for no other purpose.’” A basic assumption of the lease was the non-occurrence of a government shutdown of restaurants.32

Justice Bluth provided an astute analysis in 1140 Broadway LLC v. Bold Food, LLC.33 A company that managed restaurants stopped paying rent when the COVID-19 shutdowns of the restaurants it serviced severely hurt its business. The landlord sued, and the court rejected the tenant’s frustration of purpose defense. The tenant’s problem was subjective: tenant had not been ordered to shut down, but it happened to use the space it leased for a particular business that was severely hurt by the pandemic. Justice Bluth wrote: “This was a generic office lease,” and it “is not a case . . . where a tenant rented a unique space for a specific purpose that can no longer serve that function.”

A decision that merits some attention is SVAP v. Coon Rapids,34 where a landlord sued a gym for failing to pay rent when it was shut down due to COVID-19. The lease mandated that “Tenant shall use the Premises for only the operation of a fitness center and workout facility,” so the shutdown prevented the tenant from using the space for the sole purpose that the contract allowed, but the court refused to excuse the tenant from its contractual obligations based on frustration of purpose.

The court’s rationale to support this conclusion is not satisfying. It held that the possibility of closure was an “implied risk” that the tenant assumed, and it pointed to a generic lease provision requiring the tenant to “comply with any and all requirements of any public authority, and with the terms of any . . . law, statute or local ordinance or regulation applicable to Tenant for its use, safety, cleanliness or occupation of the Premises.” (The court italicized “any and all.”) No one questions a tenant’s obligation to comply with the law. But the fact that the tenant agreed—in a standard, non-specific, all-encompassing, boilerplate lease provision—to generally comply with all laws relating to its tenancy does not tell us whether the parties should “have foreseen as a real possibility”35 the outright closure of gyms because of the worst pandemic in a century. It strains credulity to suggest that this garden variety provision—to quote another court—“allocate[d] to [tenant] the unforeseen risk that a global pandemic could lead to government orders that bar [tenant] from operating . . . on the leased premises.”36

The court also noted that the lease “allows Tenant to seek Landlord’s consent to operate the Premises for some other purpose” and suggested that the tenant should have sought the landlord’s consent to do just that. This is a thin reed on which to rest the holding because parties always may modify their agreement and change its purpose regardless of whether the contract says so. That mere possibility does not alter the deal that the parties actually struck—in this case, the parties never agreed that the tenant would change its business to something other than a gym. Besides, it is wholly unrealistic to assume that the operator of a gym can, or should, simply wake up one day and launch an entirely new line of business. The court also said that tenant should have attempted “innovative measures” to generate income (e.g., virtual training, loans, fundraisers, and reallocation of funds between affiliated locations). But the tenant bargained to lease space to operate a gym—not to host a Zoom studio, launch a GoFundMe campaign, or sell cookies door-to-door to raise money.37 In short, the facts suggest that, contrary to the court’s holding, the non-occurrence of a shutdown of gyms was a basic assumption of this lease.

Takeaways from the COVID-19 Force Majeure Cases

Contract disputes are often won and lost in the drafting phase. The pandemic presents a golden opportunity to rethink force majeure provisions going forward. In early 2020, it was unthinkable to many businesses that they would be shut down and otherwise restricted for extended periods of time. Many are intent on avoiding anything similar. The climate for negotiating deals has changed. “Tenants are getting anywhere from 10 to 75 percent off their contractual minimum rent rates. In addition, many landlords are agreeing to percentage rent deals, which prior to COVID-19 were unusual and rare.”38 But “some landlords are requesting a landlord right of termination, which would allow the landlord to terminate the lease upon a certain number of days’ notice to the tenant.”39

In drafting, keep the following in mind:

  • Spell out in the contract all occurrences that would make the bargain intolerable to your client (e.g., the loss of a sole source of supply). If your client’s performance depends on something happening, call that event a condition precedent to your client’s obligations.
  • If the force majeure clause lists contingencies, the canon expressio unius est exclusio alterius would exclude any item not specifically listed, so add a catch-all that is not limited to the same type of events as the listed items. Example: “. . . or any other events or circumstances not within the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing.” Many courts hold that “[w]hen parties specify certain force majeure events, there is no need to show that the occurrence of such an event was unforeseeable.”40 When the event is not specifically listed but a party seeks to rely on the catch-all provision of a force majeure provision (e.g., “any other cause not enumerated herein but which is beyond the reasonable control of the party whose performance is affected”)—the event that purportedly falls within the catch-all must be unforeseeable.41
  • Mention, inter alia, government action, calamity, natural disaster, viral outbreaks, and perceived or actual epidemics and pandemics.
  • Describe with clarity whether, and to what extent, a full or partial government shutdown of the business excuses performance obligations, and whether such shutdown overrides lack of money.
  • Spell out the necessity of providing prompt notice of the event and the duty to keep the non-affected party apprised.
  • Spell out how and when the non-affected party may treat the contract as ended after the other party has declared force majeure.

Timothy Murray, a partner in the Pittsburgh, PA law firm Murray, Hogue & Lannis, writes the biannual supplements to Corbin on Contracts, is author of Volume 1, Corbin on Contracts (rev. ed. 2018), and is co-author of the Corbin on Contracts Desk Edition (2017).

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1. In re Cinemex United States Real Estate Holdings, 2021 Bankr. LEXIS 200, *18 (S.D. Fla. Jan. 26, 2021). 2. E.g., ITS Soho LLC v. 598 Broadway Realty Assoc. Inc., 2020 N.Y. Misc. LEXIS 10856, *8 (N.Y. Sup. Ct. Dec. 22, 2020). 3. 1140 Broadway LLC v. Bold Food, LLC, 2020 N.Y. Misc. LEXIS 10358, *5-6 (N.Y. Sup. Ct. Dec. 3, 2020). 4. 150 Amsterdam Ave. Holdings Llc v. Tmo Parent Llc, 2021 N.Y. Misc. LEXIS 2028, (N.Y. Sup. Ct. Apr. 21, 2021). 5. Firmenich Inc. v. TPR Holdings LLC, 2020 N.Y. Misc. LEXIS 9376 (N.Y. Sup. Ct. Sept. 18, 2020). Courts do not grant relief when the pandemic is used as a pretext for failing to perform a contract. See, e.g., Future St. Ltd. v. Big Belly Solar, LLC, 2020 U.S. Dist. LEXIS 136999 (D. Mass. July 31, 2020) (Future Street’s failure to meet minimum purchase requirements under distributor contract not caused by COVID-19 as certain payments owed to distributor preceded the pandemic); CP Assoc. LLC v. Concourse Plaza Family Dental LLC, 2020 N.Y. Misc. LEXIS 9620 (N.Y. Sup. Ct. Nov. 20, 2020) (dentist stopped paying rent almost six months before the pandemic and never stopped seeing patients); Medallion Bank v. Makridis, 2021 N.Y. Misc. LEXIS 34 (N.Y. Sup. Ct. Jan. 6, 2021) (“Plaintiff alleges that the default [in repaying loan] occurred in June 2019, long before the ongoing pandemic ravaged the United States.”); 111 Fulton St. Invs., LLC v. Fulton Quality Foods LLC, 2021 N.Y. Misc. LEXIS 471 (N.Y. Sup. Ct. Feb. 5, 2021) (restaurant’s initial failure to pay rent predated the pandemic); La Simple Co v. Slp Enters., 2021 U.S. Dist. LEXIS 81209, *21 (D. Mass. April 27, 2021) (“the record reflects that La Simple was failing to satisfy its obligations under the Distribution Agreement even before the pandemic . . . ”) 6. CP Assoc. LLC, 2020 N.Y. Misc. LEXIS 9620, *3. 7. BKNY 1, Inc. v. 132 Capulet Holdings, LLC, 2020 N.Y. Misc. LEXIS 9898, *4 (N.Y. Sup. Ct. Sept. 23, 2020) (citation omitted). 8. “If . . . a failure of performance is accompanied by an anticipatory repudiation of the remainder of the performance that is not yet due, the entire contract may be treated as a present and total breach that discharges the aggrieved party from any further duty under the contract.” John E. Murray & Timothy Murray, 1 Corbin on Contracts Desk Edition § 53.07 (2019). 9. Generally defined at common law as death or destruction of the subject matter (some states treat it as interchangeable with impracticability). Its modern revamp is impracticability: performance is made excessively burdensome by a supervening event that (1) the party to be excused did not cause and did not assume the risk of occurring; (2) was inconsistent with a basic assumption of the parties; and (3) was unforeseeable (but not inconceivable—i.e., a reasonable party would not have guarded against it in the contract). See Restatement (Second) of Contracts § 261; U.C.C. § 2-615; CISG Art. 79. 10. The supervening event makes one party’s performance worthless to the other—but performance is still possible (e.g., the famous coronation cases). Restatement (Second) of Contracts § 265. 11. 1600 Walnut Corp. v. Cole Haan Co., 2021 U.S. Dist. LEXIS 60156, *5-6 (E.D. Pa. March 29, 2021). 12. Zhao v. CIEE, Inc., 2020 U.S. Dist. LEXIS 158148 (D. Maine. Aug. 31, 2020). 13. JN Contemporary Art LLC v. Phillips Auctioneers LLC, 2020 U.S. Dist. LEXIS 237085 (S.D.N.Y. Dec. 16, 2020). See AB Stable VIII LLC v. Maps Hotels & Resorts One LLC, 2020 Del. Ch. LEXIS 353 (Nov. 30, 2020): “The COVID-19 pandemic fits within the plain meaning of the term ‘calamity.’” Moreover, “[t]he COVID-19 pandemic arguably fits [the definition of natural disaster] as well. It is a terrible event that emerged naturally in December 2019, grew exponentially, and resulted in serious economic damage and many deaths.” 14. 1600 Walnut Corp., 2021 U.S. Dist. LEXIS 60156. 15. BKNY 1, Inc. v. 132 Capulet Holdings, LLC, 2020 N.Y. Misc. LEXIS 9898 (N.Y. Sup. Ct. Sept. 23, 2020). 16. Cab Bedford LLC v. Equinox Bedford Ave, Inc., 2020 N.Y. Misc. LEXIS 10861 (N.Y. Sup. Ct. Dec. 22, 2020). 17. 98-48 Queens Blvd LLC v. Parkside Mem. Chapels, Inc., 2021 N.Y. Misc. LEXIS 265 (N.Y. Sup. Ct. Jan. 26, 2021). 18. In re CEC Entm’t, 625 B.R. (Bankr. S.D. Tex. 2020). 19. In re Hitz Rest. Grp., 616 B.R. 374 (Bankr. N.D. Ill. 2020). 20. In re Cinemex, 2021 Bankr. LEXIS 200. 21. MS v. CBW Bank, 2020 U.S. Dist. LEXIS 174257 (D. Kan. Sept. 23, 2020). 22. Moreno v. Aranas, 2021 U.S. Dist. LEXIS 16369 (D. Nev. Jan. 11, 2021). 23. Pinero v. Zapata, 306 So. 3d 1117 (Fla. App. 2020). 24. Shin v. Young Yoon, 2020 U.S. Dist. LEXIS 189519 (E.D. Cal. Oct. 13, 2020). 25. Gibson v. Lynn Univ., Inc., 2020 U.S. Dist. LEXIS 222214 (S.D. Fla. Nov. 29, 2020). 26. Rudolph v. United Airlines Holdings, 2021 U.S. Dist. LEXIS 27795 (N.D. Ill. Feb. 12, 2021). 27. RPH Hotels 51st St. Owner, LLC v. HJ Parking LLC, 2021 N.Y. Misc. LEXIS 373 (N.Y. Sup. Ct. Jan. 28, 2021). 28. 1140 Broadway LLC, 2020 N.Y. Misc. LEXIS 10358. 29. 35 E. 75th St. Corp. v. Christian Louboutin L.L.C., 2020 N.Y. Misc. LEXIS 10423 (N.Y. Sup. Ct. Dec. 9, 2020) (“[U]nforeseen economic forces, even the horrendous effects of a deadly virus, do not automatically permit the Court to simply rip up a contract signed between two sophisticated parties.”); Siegal v. GEICO Cas. Co., 2021 U.S. Dist. LEXIS 40759, *10 (N.D. Ill. March 4, 2021) (“rapid and unexpected market changes are endemic to our economy. Standing alone, they cannot constitute a frustrating event sufficient to excuse a party from performing on a contract.”); Cai Rail v. Badger Mining Corp., 2021 U.S. Dist. LEXIS 32564 (S.D.N.Y. Feb. 22, 2021) (even dramatic unprofitability due to COVID-19 does not excuse performance); MEPT 757 Third Ave. LLC v. Grant, 2021 N.Y. Misc. LEXIS 797 (N.Y. Sup. Ct. Mar. 1, 2021) (“there is nothing in existing case law that would permit a Tenant (or a guarantor) to walk away from a contract on the ground that its business model is no longer as profitable as it used to be.”). See also Tabor v. 148 Duane LLC, 2021 N.Y. Misc. LEXIS 1386 (N.Y. Sup. Ct. Mar. 29, 2021); Gap Inc. v. Ponte Gadea N.Y. Llc, 2021 U.S. Dist. LEXIS 42964 (S.D.N.Y. March 8, 2021); Lantino v. Clay LLC, 2020 U.S. Dist. LEXIS 81474 (S.D. N.Y. May 8, 2020); Belk v. Le Chaperon Rouge Co., 2020 U.S. Dist. LEXIS 117985 (N.D. Ohio July 6, 2020); East 16th St. Owner LLC v. Union 16 Parking LLC, 2021 N.Y. Misc. LEXIS 192 (N.Y. Sup. Ct. Jan. 15, 2021); 1515 Broadway Owner LLC v. Astor Parking LLC, 2021 N.Y. Misc. LEXIS 895 (N.Y. Sup. Ct. Feb. 25, 2021); Swiftships LLC v. SBN V. FNBC, 2021 U.S. Dist. LEXIS 62112, *6 (E.D. La. March 31, 2021); Fives 160th, L.L.C. v. Qing Zhao, 2021 N.Y. Misc. LEXIS 1567, *4 (N.Y. Sup. Ct. Apr. 6, 2021); Green 485 Owner LLC v. Quick Park 485 Garage LLC, 2021 N.Y. Misc. LEXIS 807 (N.Y. Co. Sup. Ct. Feb. 25, 2021). 30. Restatement (Second) of Contracts, Chapter 11, Introductory Note. 31. Martorella v. Rapp, 28 LCR 306 (Mass. Land Ct. 2020). See also In re Condado Plaza Acquisition LLC, 620 B.R. 820 (Bankr., S.D.N.Y. 2020) (Condado, under contract to buy a hotel that had closed due to COVID-19, argued that it had no duty to close on the transaction since the seller could not deliver a viable and operational hotel, which Condado claimed was the “very foundation” of the contract. The court rejected this argument. In dicta, it pointed out that the agreement “expressly disclaimed any obligation to maintain operations at the hotel.”). 32. UMNV 205-207 Newbury, LLC v. Caffé Nero Ams., 2021 Mass. Super. LEXIS 12 (Feb. 8, 2021) (the decision also contains an unsatisfying interpretation of a force majeure clause). 33. 1140 Broadway LLC, 2020 N.Y. Misc. LEXIS 10358. 34. SVAP v. Coon Rapids, 2020 Minn. Dist. LEXIS 361 (Dec. 18, 2020). 35. Salimi v. Salimi, 2021 Mass. LCR LEXIS 45 (Mass. Land Ct. Apr. 13, 2021). 36. Umnv. 205-207 Newbury, 2021 Mass. Super. LEXIS 12, *13-14. 37. In In re Hitz Rest. Grp., 616 B.R. 374, the court correctly held that there was no requirement that tenant seek a loan to be excused of obligations. 38. Jennifer Meyerowitz, Lease Negotiation During COVID-19, 40-3 ABIJ 16, 16 (2021). 39. Id. at 17. 40. TEC Olmos, LLC v. Conocophillips Co., 555 S.W.3d 176, 183 (Tex. App. 2018). Not all courts agree: Gulf Oil Corp. v. Fed. Energy Regulatory Comm’n, 706 F.2d 444, 454 (3rd Cir. 1983) (listed events must be unforeseeable). See also Watson Labs., Inc. v. Rhone-Poulenc Rorer, Inc., 178 F. Supp. 2d 1099 (C.D. Cal. 2001). 41. TEC Olmos, 555 S.W.3d at 183.