Same Old Story, New Solution: Force Majeure Deficiencies In The Wake of COVID-19 and An Unorthodox Approach to Drafting It

Authors

Steven H. Dovi

First Page

81

Abstract

On January 20, 2020, the Centers for Disease Control and Prevention reported the first laboratory-confirmed case of the 2019 Novel Coronavirus (COVID-19) on American soil.[1] On March 8, 2021—more than a year later—the United States District Court for the Southern District of New York decided Gap v. Ponte Gadea New York.[2] It ruled, inter alia, that the COVID-19 pandemic, in keeping with the relevant provision’s narrow tailoring, did not amount to a force majeure event and a defense to breach.[3] While seemingly one of the first decisions of its kind in the Southern District, this Note argues that the holding and the general principles it was based upon (i.e., that narrow contract construction invites narrow interpretation) was expected and historically quite familiar. Nevertheless, this Note advocates, in response, for a divergent, albeit unconventional, new approach to the drafting of the force majeure provision. One that not only embraces and accepts the historical shortcomings of the force majeure provision, but uses an ever-present contractual interpretation to its advantage.

Recommended Citation

Steven H. Dovi, Same Old Story, New Solution: Force Majeure Deficiencies In The Wake of COVID-19 and An Unorthodox Approach to Drafting It, 17 Brook. J. Corp. Fin. & Com. L. 81 (2023).
Available at: https://brooklynworks.brooklaw.edu/bjcfcl/vol17/iss2/6