🌈 If you’re using force majeure, file in California if possible

In the early weeks of coronavirus, a lawyer’s ability to successfully use the force majeure clause was questionable. Legal experts now say the clause’s success may hinge on the jurisdiction. And lawyers in California will likely find it easier than those in New York, according to Law 360.

California love: All you may need in California is an “Act of God” reference, which is common in most contracts. Why? Because two civil codes grant flexibility. 

  • California Civil Code 3526 says that “no man is responsible for that which no man can control.” And Civil Code 1511 says an obligation can be excused by “a superhuman cause.”  

New York’s state of mind: The Empire state is less forgiving. A lack of foreseeability will likely not be enough to sway a court. Instead, lawyers who want to prove force majeure will have to show that it was impossible to fulfill the contract.   

  • To prove impossibility, a business would likely have to be shut down. Otherwise, in New York, the force majeure clause would need specific language about a pandemic.

  • Nearby states like Delaware and New Jersey are known to be less strict than New York on deciding what circumstances fit a force majeure clause.