FAQ – Contract Without Force Majeure Clause

If my contract doesn't contain a force majeure clause, but the COVID-19 pandemic nonetheless makes performing under the contract impossible, what are my options?

The answer may vary from jurisdiction to jurisdiction. However, most states provide that if the underlying intent of the contract is frustrated by an unavoidable accident that occurs while all persons concerned were exercising ordinary care and prudence, there is a defense for nonperformance. The prudent course of conduct is to provide notice to the other party to the contract and, when possible, work collaboratively to address the delay and document how the parties are going to address the issue. In the event litigation is needed, the answer will likely depend on the facts of each particular contract.

It is not easy to claim frustration/hardship/impossibility of contract, and the ability to do so is very fact specific. You should contact your Q&B attorney to coordinate how best to proceed if it appears a default is likely.

Does the coronavirus pandemic constitute impracticability of performance under UCC Article 2? If so, how does that impact each party's obligations under the contract?

There is no clear precedent on this issue to provide a yes/no answer. As stated above, the issue is fact specific and may depend on the venue and law where the Courts will be required to decide this issue.