Thomas J. Hall and Judith A. Archer
Earlier this year, there were many predictions of a litigation explosion due to the COVID‑19 pandemic. While the worst may be yet to come, an avalanche of COVID-19 arguments has not yet cascaded into the Commercial Division. Where COVID-based arguments have been raised, the results are not particularly surprising in light of well-developed New York law, including for the criteria to establish impossibility of performance, frustration of purpose or other contractual excuse. In this column, we examine how the Commercial Division has dealt with these issues to date, which might provide some insight into how COVID-19 arguments will be resolved in the future.
Contractual Issues
Predictably, the pandemic—and resulting business and travel restrictions—has led to arguments that a party’s contractual performance should be excused, most notably due to impossibility of performance or frustration of purpose. Those arguments, however, have run up against the high hurdle under New York Law for establishing such.
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