HAS COVID-19 FRUSTRATED YOU ?

What is Frustration? And why is it relevant right now?

If the ongoing COVID – 19 pandemic has not allowed you to perform your obligations under a contract, take another thorough look at the provisions of the contract to see whether you can find a defence under the Force Majeure Clause. It could be possible that the pandemic and/ or its resulting consequences are covered by the clause, or have affected the performance of your duties in a way envisaged by the clause. It will also most likely require that you notify the other party which you must do (even though you think it goes without saying).

You may already know this as the current situation has forced you to take a second look at your current contract(s), or perhaps a lawyer has drawn your attention to it. If you did not find any good news therein, you might still find a silver lining in the common law concept of frustration, which is currently relevant because something as unexpected as the ongoing pandemic may (understandably) not be covered by your Force Majeure clause. The doctrine of Frustration will apply when such an event as the pandemic makes it extremely difficult or downright impossible to fulfil your obligations, despite your willingness and / or good intentions; or when performance becomes illegal, or when it becomes so radically different from what was envisaged when you entered into the contract. It is however not a one- size fits all principle and a few inconveniences or the imposition of temporary restrictions by the government would not be conclusive proof of frustration. Also, unlike a Force Majeure, frustration would in effect immediately terminate a contract.

It would definitely be easier to rely on a Force Majeure principle if your contract contains one, and it is always better to engage a lawyer with respect to your specific situation.