An Economic Perspective on Contractual Excuse: Lessons from COVID-19
Abstract
This Article shows that, contrary to the recommendation of much recent legal scholarship, courts rarely found that business restrictions during the COVID-19 pandemic excused contract performance. In cases where courts did excuse performance, it was pursuant to a contractual force majeure clause—not under one of the default excuse doctrines of impossibility, impracticability or frustration. This is in line with the longstanding judicial practice of severely narrowing default excuses. By reviewing the economic purposes served by executory contracts, this Article explains why the no-excuse default outcome is likely economically efficient: the no-excuse default enhances both the risk reduction and investment-increasing value of executory contracts while minimizing the transaction and strategic costs of bargaining around the default.