HE UNIMAGINABLE has happened. Sept. 11. The terrorist strikes on that day have forced all of us to imagine what had previously been unimaginable. Lawyers are trained to anticipate events that could adversely affect their clients so as to better protect them. No one anticipated Sept. 11, even after the 1993 bombing of the World Trade Center. However, now that Sept. 11 has occurred and there is an increased likelihood of more terrorist strikes, it is incumbent upon lawyers to contemplate the possibility of such strikes and safeguard their clients appropriately. Real estate lawyers, in particular, need to consider whether their standard “purchaser’s” risk of loss provision affords sufficient remedies to their clients with respect to terrorism and its aftermath.
This article explores the risk of loss doctrine, as embodied in a typical contractual provision and legislation, and argues that it is necessary to expand the scope of the doctrine in order to effectively protect purchasers against the “new” risks of our post-Sept. 11 world.
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