David Rosemberg of Rosemberg Law in Aventura FL.

Can a party to a contract invoke force majeure forgiveness if the COVID-19 outbreak had already started when they signed on the dotted line?

A Miami-Dade lawsuit seeks to find out.

David B. Rosemberg of Rosemberg Law in Aventura represents real estate holdings company Trumpeter International LLC, which sued after its deal with Spanish citizen Anastasio Vega Garcia fell through during the initial stages of COVID-19-induced closures.

The defendant claims its contractual breach should be excused by a force majeure provision, which waives liability when an agreement is thwarted by something unforeseeable. But Rosemberg argues the breakdown was instead "a case of buyer's remorse."

"When the initial contract was executed, the winds of change were already blowing, in that COVID-19 was already pretty much on everyone's radar around the world," Rosemberg said. "You had parties that amended a contract in the throes of a pandemic, and so it's very hard to say it wasn't foreseeable or it wasn't something that was happening then and there."

Vega Garcia had agreed to pay a $190,000 deposit for the Trumpeter's Miami Beach multi-family building on 650 Euclid Ave. on Feb. 14, according to the complaint. But on March 11 — the day the World Health Organization declared COVID-19 a pandemic — he asked for an amendment that said Trumpeter would make certain repairs to the building.

Another amendment followed March 23, a week after the Spanish government declared a state of emergency, according to the complaint. This time, the parties agreed to move the closing date from March 25 to April 30.

The contract said that if the deal failed to close the seller could keep the deposit, and it said force majeure events included, "hurricanes, floods, extreme weather, earthquakes, fire, or other acts of God, unusual transportation delays, or wars, insurrections, or acts of terrorism, which, by exercise of reasonable diligent effort, the non-performing party is unable in whole or in part to prevent or overcome," according to the lawsuit.

But when the closing date came and went, the Miami Beach law firm serving as an escrow agent for the deposit declined to release it, citing the force majeure provision.

"The crux of it is, is the coronavirus pandemic an act of God?" Rosemberg said.

Escrow agent Staci Rutman and her firm Rutman Law are also defendants in the case. Rutman declined to comment, but her attorney Sheila Oretsky of Buchanan Ingersoll & Rooney in Miami said the plaintiff has agreed to dismiss Rutman Law from the suit.

Vega Garcia's counsel Alexander Orlofsky of the Orlofsky Law Firm in Miami Beach did not provide a comment by deadline.

Thanks to lawsuits like this, Rosemberg says it's widely expected that force majeure provisions will get a lot more specific about pandemics in future. But for now, he said courts across the country are issuing rather different rulings on what does or doesn't constitute an act of God under force majeure provisions.

"Force majeure clauses are something that commercial litigators have been chewing on for three meals a day since the COVID-19 outbreak," Rosemberg said. "The analysis will come down to: What was the hindering force? Was it COVID-19? Was it a government restriction? And you have to look at the specific language of every force majeure provision to see what is contemplated, what is specifically addressed, what is not addressed."

Miami-Dade Circuit Judge Jose Rodriguez will preside over the litigation.

Read the full complaint:

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