ABSTRACT
This article focuses on the application of equitable doctrines to disputes arising out of the COVID pandemic. It does not deal with the express contractual language that has also been the center of much pandemic litigation: force majeure clauses, specific provisions of business insurance contracts, material adverse change clauses in corporate acquisition agreements, etc. In cases where there are relevant express provisions, the parties have expressly allocated certain risks between them; what remains are cases where the particular risk has not been allocated, and the default rules of contract law must decide who should bear the loss. The relevant equitable doctrines, impracticability and frustration of purpose, are vague. It is precisely this uncertainty in meaning and application, and the ways courts are inclined to apply such indeterminate standards in the face of a global economic upheaval that is interesting. The application of general standards will always be sensitive to background policy considerations. That sensitivity is further pronounced when equitable standards might excuse performance and limit the predictable enforcement of commercial agreements. Parties suffering under the conditions created by the pandemic hoped that they might be saved by the changed circumstances equitable doctrines, a hope that had some basis in the language of the doctrines. However, it is not surprising that, for practical reasons, the doctrines have been read quite narrowly, rarely offering the lifeline sought.
Bix, Brian, COVID Concerns: Some Realism About Equitable Relief (May 12, 2022), Law and Contemporary Problems, volume 85, no 2, 2022; Minnesota Legal Studies Research Paper No 23-12.
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