Change in law clauses might be more
appropriate and useful than force majeure in
certain contracts affected by the coronavirus
disease 2019 (COVID-19) restrictions.
The wording of the particular clauses in
the context of the particular contract is all
important. The intersection of change in law
and force majeure could produce interesting
results.
Typical force majeure clauses excuse non- or delayed
performance due to events beyond the party’s control, usually
including governmental action. Change in law clauses typically
enables a contractor to recover the increased cost, and the
principal to recover the decreased cost, in performance due to a
change in law. Depending on the definitions, governmental action
in the force majeure clause may be the same as a change in
law under that clause, or they may be different. Even if they are
the same, the effects might be different and the force majeure
clause might encompass the effects as well the cause.
