I am negotiating a contract with a client prospect which includes the following Force Majeure clause:

"Neither party shall be liable for any delay or failure to perform its obligations hereunder resulting from any cause beyond such party’s reasonable control, including but not limited to acts of God, weather, fire, explosions, floods, strikes, work stoppages, slowdowns or other industrial disputes, accidents, riots or civil disturbances, acts of government, inability to obtain any license or consent necessary in respect of any third-party software, delays by suppliers or material shortages, design defects, flaws or errors in third-party equipment or software, epidemics, pandemics, COVID-19 and dangerous conditions that pose a threat to either party’s personnel."

The client has responded with the following statement:

"The current contract is written in such a way where you could simply collect a check and walk away “because COVID-19” happened. We need this removed and explicitly excluded as it is now preexisting and no longer considered an unknown event. If you would like a separate clause allowing reasonable delay due to COVID-19 caused illnesses that would be fair and reasonable given the ongoing pandemic."

What specific wording can I amend to this contract to fulfill my client prospect's request?

  • We can't provide legal advice on this site, and I think offering specific contact language would fall in that category. See law.meta.stackexchange.com/q/221. You need to talk to your lawyer. – Nate Eldredge May 17 at 20:54

What specific wording can I amend to this contract to fulfill my client prospect's request?

Clearly your client's concern is the risk of [your] unjust enrichment at his expense. Accordingly, a better approach is to word the clause in terms of (1) rescinding the contract if the adverse conditions arise, or (2) allowing a delay that is commensurate with the adverse event(s). Your client reflects a preference for the latter approach, although it is unclear whether either of you have pondered the former one.

Side note: Your client's argument of preexising vs unknown events has no merit, as it oddly purports to require in a contract a degree of uncertainty. Contracts are premised, inter alia, on the parties' awareness of conditions and circumstances or context in which those contracts are entered. If anything, the fact that COVID-19 is no longer an unknown event enhances the parties' ability to weigh the rights, and duties (with their associated risks) to which they are committing in a contract.

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