contract-law covid-19 force-majeure
Amending a contract for COVID-19 for reasonable delay for a known event
<p>I am negotiating a contract with a client prospect which includes the following Force Majeure clause:</p>

<blockquote>
  <p>"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."</p>
</blockquote>

<p>The client has responded with the following statement:</p>

<blockquote>
  <p>"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."</p>
</blockquote>

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

<blockquote>
  <p>What specific wording can I amend to this contract to fulfill my client prospect's request?</p>
</blockquote>

<p>Clearly your client's concern is the risk of [your] <em>unjust enrichment</em> at his expense. Accordingly, a better approach is to word the clause in terms of (1) <em>rescinding</em> the contract if the adverse conditions arise, or (2) <em>allowing a delay</em> 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.</p>

<p>Side note: Your client's argument of <em>preexising</em> vs <em>unknown</em> events has no merit, as it oddly purports to require in a contract a degree of uncertainty. Contracts are premised, <em>inter alia</em>, on the parties' <em>awareness</em> 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.</p>
