If Past is Prologue, Then The Future is Bleak: Contracts, COVID-19 and the Changed Circumstances Doctrines

At the heart of most systemic problems currently confronting individuals and businesses as a result COVID-19 pandemic is quite literally contract. Housing. Insurance. Food. Health Care. Child Employment. Manufacturing. Construction. Supply Chains. You name it. Contracts are implicated everywhere. So, make no mistake, how contract law addresses these ostensibly private contracts will have profound social consequences. If past really prologue, then future indeed bleak. The empirical study conducted for this Article establishes what conventional wisdom has claimed last 70 years. More specifically, here shows that common law’s changed circumstances doctrines [“CCDs”] (i.e., impossibility, impracticability performance frustration purpose) generally not excuse party from performing his contract, regardless circumstance being alleged. Contrary to all CCD literature issue, makes unconventional argument CCDs should be more broadly available, meaning they successful in excusing when triggered by catastrophic circumstances. And, unlike rest field which focuses on themselves, argues effectively address allocation unforeseen risks, general, risks like pandemic, particular, we must reframe legal approach formation. formation reframed accurately reflect contracting real world, given solution problem preferred courts commentators an explicit risk term parties’ proposed suggests itself. A clause mandated part type loss way would work depend whether co-drafted or adhesive. inclusion facilitate transactions encourage general ensuring remain efficient predictable. main difference between existing law, course, who ends up bearing occasioned circumstance. To clear, if nothing changes our remains same it right now, attendant left lie where falls, namely, trying get out because circumstances; theory used justify (or demonize) any made themselves. But, finally acknowledge public aspects do fact produce consequences extend beyond individual parties, may well solutions some pressing American society now into future.