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Editor's Note: This sample letter is a response acquiescing to a service provider's notification of force majeure due to government action closing non-essential businesses in connection with the novel coronavirus (Covid-19) outbreak.
Response to Force Majeure Declaration
Re: Declaration of Force Majeure – Services Agreement dated [Date]
Dear [Contact Person]:
We are in receipt of your notification dated [Date] in which you invoked the protection of the Force Majeure provision as set forth in Section [xx] of the above Agreement. You noted that the “stay-at-home” and closure of non-essential business orders issued by [State] due to the novel coronavirus (Covid-19) pandemic are preventing you from performing services under the Agreement. Such [State] actions, you assert, constitute “government orders” and/or “causes outside the control of a party,” which are listed as “Events of Force Majeure” in the Agreement.
Comment: A party receiving a force majeure notice should always acknowledge receipt, even if it is apparent that a force majeure event has occurred and regardless of whether the recipient agrees or disagrees with the declaration. Keeping lines of communication open while the effects of the event are ongoing provides the non-affected party with opportunities to monitor the affected party and its efforts to mitigate or remedy the cause and resume performance.
We understand your reasons for claiming the occurrence of a force majeure event. It is our hope and desire that full performance under the Agreement can resume as soon as possible, and ask that you keep us fully informed of all developments. We are willing to extend the term of the Agreement for a period equal to the duration of the Force Majeure period; that is, until such time as [State] orders are lifted and performance resumes. Please indicate your acceptance of such an extension by contacting the undersigned within the next [Number] days.
Comment: The party invoking force majeure typically has the burden of proving that the force majeure provision of the parties’ contract properly applies to the claimed situation (see Point of Law (POL)), and is the cause of the party's nonperformance. Court Opinions Search. Most courts construe the terms of a force majeure clause narrowly to determine whether the risks the parties have agreed are outside their control and will excuse performance. In the case of the coronavirus pandemic, it is not enough that the disease has occurred and has affected commerce. The party invoking the benefit of the force majeure provision has the burden of showing the causal relationship between the outbreak of the disease and its (non)performance under the agreement.