Coronavirus: Force Majeure and the Common Law Doctrine of Frustration

Abstract

With the number of confirmed cases exceeding 1.5 million, governments across the globe have been forced to take several safety measures to contain the spread of the pandemic – Corona Virus. For example, the United Kingdom has passed an Emergency Coronavirus Act, giving government officials new powers to prohibit gatherings and public events, as well as detain “potentially infectious persons” and put them in isolation facilities. Other countries like the U.S, China, Italy, France and Spain have also imposed travel bans and movement restrictions in their countries with heavy fines introduced for people who ignore the rules.
The African continent likewise is not spared as reports have it that a State of emergency is effective in Senegal and Ivory Coast, while in Nigeria, the federal government has ordered cessation of movement in coronavirus hotspots, and advised citizens to work from home. These containment policies put in place by the government is sure to be inimical to businesses which are heavily reliant on supply chains and free movement of goods and services for the performance of their contractual obligations.
Against this backdrop, this essay seeks to provide an expository analysis on certain defenses which may be available to contracting parties in the event of contractual non performance caused by the pandemic.

Keywords: Force majeure, Frustration of contract

JEL Classification: K