Unedited transcript of

Force Majeure Analysis from How to Renegotiate in the COVID-19 World Recorded 07/30/2020

Speaker(s) Frank S. Maniscalco, Esq., Advocate Mercantile LLC, Boston Sara Lyons Myer, Advocate Mercantile LLC, Philadelphia

>>: But I'm going fast, so we'll probably get to it before you think. All right. So now, here's our pre-COVID clause. So first things first, am I covered by the force majeure? Yes, it is very possible that you're not covered by the force majeure especially in a leasing environment. In fact, some of the clients that hit us during this time were saying, do I have to pay rent? And I looked at several leases and in most of them, the landlord was excused from providing the space to - place to work or live, but the tenant was not relieved with a force majeure event. The problem was, they just signed whatever they were given, and they did not negotiate. Now, these were business-to-business leases, so they have the obligation to negotiate and to protect their rights. The , as they said even in 9/11, not only do you have the obligation negotiate, but if you make an oversight or don't think it through or if you get something that's just about their terrorist act first act of war - tough. You've got to get it right. So the first thing we did is we popped open our contracts. We looked for limitation of liability. We looked for consequential damages. We looked for exclusive remedy. We understand what our general damages are going to be should something go wrong. But now, we're going to look for force majeure and try to get out of any obligation under the . And that's what force majeure is intended to do. So let's move on to this stuff. And this is where we will start to go into the analysis of force majeure, and I will pass over to Sara.

>>: OK, great. So unlike some of the civil jurisdictions, the United States does not have any codified force majeure provisions in a statute.

© MCLE, Inc. All rights reserved Therefore, the potential application of force majeure is going to be dictated by the specific context and the fact, and it's going to be controlled by the specific language in the contract as that's negotiated by the parties. And there are many cases - lots of case law surrounding force majeure. And when you start looking at the case law, three key elements in application becomes clear, and that's what we're going to go through today. I thought that'd be most helpful. And then three key elements of the court application is, what constitutes a force majeure event? What conditions or obligation, if any, must be met or performed by declaring party? And then, what remedies are available? Or what consequences apply upon the occurrence of an event of force majeure? So looking at element one, let's talk about what constitutes a force majeure event according to case law. A force majeure event is an event that is outside of the reasonable control of the party, and that prevents the party from performing its obligations under a contract. Now, most force majeure clauses will contain broad descriptions of events. Like, the classic one is acts of God. That's obviously very broad. Like, act of government, natural disasters. Even when you start describing events as an endemic or - epidemic rather or a natural catastrophe, that's still a pretty broad description of the event. However, there is good reason to get more specific than that when you outline what constitutes a force majeure event in your clause. As Frank was talking about when he told us about that 9/11 case, the courts - they're just not very kind to you when you don't specify what you mean by force majeure event. The express provisions of the clause usually do prevail. Sometimes, the broader description will work in your favor. So for example, if you're a party wishing to invoke a force majeure clause because it's COVID-19, and your clauses pandemic, which is pretty broad, as one of the unforeseen events, you're in good shape. But as we can see in that case, when you start to narrow down the description, then the clause may in fact become less effective. So Frank, let's take a look to see what we've got in our clause. Oh, you're muted.

>>: Just told me. All right. So looking at our standard clause that we were using, that our clients had, we did, in fact, list out different events. Now, luckily - first of all, we learned from 9/11. Come on. We learned from 9/11, and we did in fact have terrorist acts specifically listed now, but did we foresee the event that was happening? Well, we put epidemics. So that is

© MCLE, Inc. All rights reserved something that - we feel like we do have some protection, and we will take a look and we'll do an analysis of whether we have the proper protection under that first element of what constitutes a force majeure. So we have epidemic, but COVID is a pandemic. So the question is, are we covered? Well, I don't know. I didn't know, but now I feel like I do. So what I did is I went to what I would feel is the definitive source that any court or judge would look to as what is really an epidemic and what is really a pandemic. And so I went to the Center for Disease Control, and they, again - very shocked at how quick and how good the government is. They had lessons on epidemiology for anybody. So you can go to this webpage, and you can see various charts and then you can even take a quiz to test your knowledge of whether you know the difference between a sporadic disease, an endemic, a hyperendemic, pandemic, epidemic. So based on spending a little time on the CDC website, I took a look at it, and I basically extracted what they said into more commonly used definitions. And you'll see these used pretty much throughout the web as people were talking about this. All right. So we have epidemic. Epidemic is an occurrence of an infection - an infective disease among particular - I mean we have epidemic. It's occurrence of an infectious disease within a region. Right? So we are covered. So catch-alls we'll get to as well. So someone else just asked what about catch-alls like - or any other cause beyond the parties you have under control. First of all, I love the excitement around force majeure. We will definitely get to that, but we're still on just the list. Let's get to the first one, and then we'll get to the catch-all. All right. So we have an epidemic, and we're wondering if the infectious disease for particular - I mean, epidemic which is occurrence of infectious disease within a region. But we're living in a pandemic world right now. So the question is, does our force majeure us? Will the 9/11 courts be so strict as to say sorry. Just like where they said terrorist act does not pass as a war, pandemic and epidemic are not the same. But if you Venn diagram out what the CDC is saying about these different clauses - there we go - you can see that pandemic is sort of the superset - well, not sort of, it is the superset. It is the largest scale disease infection that hits the world or hits a country. Endemic, which I actually didn't really understand quite so well, is - it hits a particular people. So it's only going to hit people who have blue eyes as opposed to brown eyes, but if you're in the business of making blue-eyed sunglasses and you could only have blue eyed people work on it, then you

© MCLE, Inc. All rights reserved are affected. So in a pandemic, it would actually include epidemics. So I think our clause - if we had epidemic and pandemic, we would be covered - I mean, endemic and pandemic. Now, what about epidemic? So an epidemic overlaps with endemic, and it is basically an infectious disease within a region. Now, if we have a pandemic, therefore, the entire United States, the entire world is being affected by COVID, I think it's pretty obvious to say that we also have an epidemic because my region is affected. So Massachusetts is affected. So I feel like since we have epidemic listed, and we're living in a pandemic, it would be really hard stretch for the courts to say no, you're in a pandemic not an epidemic. But I can honestly argue, well, we're also an epidemic because it's in my region. Now, the other thing is there's a smaller subset within epidemic which is an outbreak, and that would be, say, Boston has an outbreak, but it doesn't affect Massachusetts. So in that situation, in this - if my force majeure said outbreak, I think we would be - in this situation, if the outbreak occurred and I had epidemic in my force majeure clause, I would still say I was covered. However, if I was trying to use an outbreak as the force majeure, and it never raised to the level of an epidemic and my force majeure clause says epidemic, I would not be covered. Because 9/11 says you really have to get - the Cantor Fitzgerald case says you really have to get it just right. So if I'm going to take a look at the situation based on what happened to COVID, what happened during the Black Plague and what happened during Cantor Fitzgerald, I'm going to realize that I need to really redraft my clause. So let's go back to my clause. This is what it was before. It just said epidemic. Based on what I learned from the CDC, I'm going to redraft it and I'm going to add an endemic, epidemic and outbreak. So it has pandemic, endemic, epidemic and outbreaks. So that way, I'm covered. Now, if a pandemic hits, I'm covered in all situations. But I want to be able to trigger my force majeure should there be an outbreak, an epidemic or an epidemic. So you want to go from the smallest of the Venn diagram upwards within your force majeure. Now, as lawyers - right - luckily, we put endemic - or, I mean, pandemic into our force majeure before it happened. The question is, well, what do we have to think of next? Right? So yeah, we have terrorist acts, maybe it wasn't there before 9/11. We have endemic. So I was sitting there trying to figure out what else should we put in the clause? Well, it's already up on the CDC website, so I was looking around to see what they say we might be concerned about.

© MCLE, Inc. All rights reserved And you know, the CDC has a really good sense of humor. They have a whole set of webpages on zombie preparedness. And if you go to the CDC website, they really went the extra mile on this. They have blogs, they have video presentations on what to do. They have a graphic novel, and they even have posters that you can put in your workplace. So you can put that right next to your copy machine or your refrigerator to get your staff ready for the next one. Now, did I put zombie apocalypse into our new force majeure clause? No, but maybe you should. I would be immensely proud of myself if I start seeing zombie apocalypse in people's force majeure clauses moving forward. And therefore - OK. We have a question. Even if it says epidemic, is there a legal basis to argue that the parties, nonetheless, would have intended for it to apply to a pandemic, which is even bigger event? They are not epidemiologists. Well, if I look at the Cantor Fitzgerald as the stare decisis, I would say no because a terrorist act could absolutely be the predecessor to an act of war. And in fact, attacking a country under a terrorist act - it was often called an act of war. So you could make that argument. Of course, you can make that argument, but if you intend something and you don't write it, as Sara says, the courts are very - just merciless between a business-and-business contract. Get it right or tough. And that's kind of like the gist of force majeure throughout time. So you could argue it, but again, intent doesn't really apply because as we all know in contract is the four corners, and most contracts will have integration. And even if you have like two theses that going back and forth while you're negotiating about pandemic and epidemic, that's not to be allowed in. It has to be proven outside the four corners. So therefore, it really is - well, I wouldn't want to be the judge, but I would make that argument and I would definitely, you know, change the clause moving forward. So again, though, if the audience here were to write zombie apocalypse in force majeure, I would be very proud, but I'm not going to do it myself. There are clients that would appreciate it. All right. So now, we have drafted the conditions and obligations of the force majeure - check. Let's move on to the next element where Sara will discuss.

>>: Yes, it's hard to follow zombies, but anything you say after zombie is going to be very boring. But if you are a party who wants to invoke a force majeure clause, what do you need to do or show? That's the second thing

© MCLE, Inc. All rights reserved we want to talk about here. Generally speaking, you have to show that you tried to avoid the event or the consequences or you tried to mitigate those consequences. So the case law surrounding force majeure has consistently shown that it's not enough to say, for example, well, COVID- 19 has shut down the country, so I'm going to invoke my force majeure clause. You're going to need to show that not only does COVID-19 affect your ability to perform under the contract but also that you tried to find another way that you could perform or you tried to mitigate. A great example of a way in which you might not prevail with the force majeure clause is where your inability to perform is only temporary. So a temporary disability might not permanently excuse your performance. And in many force majeure cases, courts have stressed that when a disability is resolved, then your performance has to continue. And this goes back 80 years already, but there is a classic Depression era case coming out of World War II called Slaughter v CIT Corp where the state and federal governments had ordered banks to shut down because of World War II. And when a bank relied on the shutdown to justify its non-performance of the contract, the court said well, hold on. That non-performance can only be excused for the length of the shutdown and not beyond. So this is another thing that you're going to want to address when you're drafting these force majeure contracts.

>>: Now, before we jump ahead, we have a very interesting question. One of the audience asked - would you recommend naming COVID-19 specifically in the force majeure clause for the benefit of the debt? I would recommend against that. The reason being is, if we look back at the force majeure clause, it talks about unforeseeable events, right? So if we're naming the actual virus that is affecting us, it's hard to believe that we would consider that unforeseeable. So just going to jump back to that clause and in that clause, you'll see that force majeure, by its nature, is beyond the party's foreseeable control including but not limited to. Right? So if you put COVID-19 into the contract, well, I think it's very foreseeable that you would have been affected by COVID-19. The other thing is it's a little bit too late. Right? So if you were to put COVID-19 into this, that means you could protect us from future outbreaks of COVID-19 but not from the ones that's going on right now. And further, the next disease might not be called COVID-19. And if it mutates, it might be called COVID-

© MCLE, Inc. All rights reserved 19 AB, or they might come up with a whole other name. And since names are pretty much just arbitrarily handed out by the media - I mean it was called the coronavirus originally, but I think I think Bush had a problem with that because they were losing stock in beer - that they started changing - they lobbied the media to call it COVID-19 which was the more technical name. So I would not recommend that. OK. Sorry, Sara. Let's jump back in to the conditions and observations. So let's take a look at our force majeure clause. Did we discuss conditions and obligations? Well, no. We didn't get it. So what we have to do is we're going the redraft our clause to talk about the conditions and the obligations should a force majeure event occur. So now, to be fair, every time you get a client, they come to you and say the contract's too long. We can't make sales. So you have to be careful with the real . Now, if you look online, you're going to see quite a lot of force majeure clauses and you're basically you can make a book out of this, right? But if my standard template has a whole page clause on force majeure, I think my clients might kick me out the door. Half the time, they're even wondering why there's boilerplate at all, and they want to just take it out. This is why the contracts will finally get smaller and smaller and smaller. So in redrafting this, I want to make sure I'm very aware that I do not want to take up too much real estate, but this is force majeure. We're talking big bucks, right? Cantor Fitzgerald lost seven figures based on the fact that this one clause wasn't negotiated right. So we're going to have to take a little extra time to be careful with it, but we got to be brief. So brevity is our friend in this situation. All right. So redrafting the clause - I added this. So as a condition for triggering a force majeure clause, I'm going to put on the obligation of one party to provide 15 days calendar - of calendar days' notice that a force majeure event has occurred. So when the pandemic hits and you know your factory is closed or your employees can't get work, you need to write a letter to the contracts that you are in and say, by the way, I'm being affected by a force majeure event. I'm in the United States. It started, you know, in China - Italy. So if my factory is in Italy, I would expect a letter from Italy to come get my client in United States 'cause I haven't hit United States yet. Saying we're being affected by a pandemic, and here's - it happened 15 days ago. It's affecting us. And then you need to give - and I added the standard of estimate of the expected time of the force majeure effect, and I'm redefining as an impact - using a defined term. Just in case you're new

© MCLE, Inc. All rights reserved to drafting contracts, capitalized terms are defined terms, and that's why you capitalize them. So everywhere else in the contract where you see impact, it's - you substitute in your mind is the estimated time and delay and material aggregation 'cause of the force majeure. All right. Now, what are - that is the condition, right? The condition that exercises force majeure clause is that I have to give notice. But what is the impact? Well, the impact is that I will use - what is the obligation? I will use commercially reasonable efforts to mitigate the impact. So I'm being very broad, very vague in this, but I'm - in a sense, that I'm protecting both parties by saying it's a force majeure event. I don't know what I need to do, but what I will do is I will do what's commercially reasonable. Now, lawyers will spend a lot of time arguing about these different standards. You have best effort. You have commercially reasonable. You have due diligence, all due diligence, prudent, right? So you can put in what matches what is best for your industry. My go to is - tends to be commercially reasonable because if you're not going to make fiscal sense, why would I do it? It would be better for me to just get out of the contract. But if you put best efforts, then you're really going to be looking beyond the commercial reasonability of it. So you want to be careful of the standard you put there. So now we have our secondary draft of our force majeure clause, and now we're considering the first two elements. So let's take a look. Check - we have the force majeure event, and we have the conditions, obligations. So now back to Sara to explain remedy and consequences.

>>: OK. Yeah. So finally, let's take a look at what remedies are available to me when I invoke a force majeure clause and then what consequences might apply. So this is going to depend on your duties under the contract. And also, on any express provision that you added to your force majeure clause. Contractual remedies might include time extensions - that's one you see a lot - or maybe an agreed upon period of time to pause the performance. We know we have a duty to mitigate, and we also know that just a temporary disability might not exceed performance, a partial disability might not exceed performed either. Unless the business is entirely shut down and unable to perform at all, courts may not excuse the performance. And in many cases, at least some portion of performance remains an option. For example, right now with COVID, we're seeing a lot of businesses attempt partial performance. And one of the ones I think

© MCLE, Inc. All rights reserved everyone is seeing right now under the COVID restrictions is the restaurants who are prohibited from serving their dine-in guests because of the state orders, which are offering now takeout food. Another example is if your business was shut down under the governmental order because it was deemed - it wasn't deemed essential, like what Frank was saying. We had a lot of clients with this earlier this year. Did you mitigate by trying to get an exception - or an exemption rather? Force majeure case law clearly shows that courts expect parties to partially perform and to seek these performance remedies when possible. So it's great if you can think of some of these issues ahead of time and then put in those express provisions into your clause so that some of these partial or temporary performances are already spelled out for you. So let's take a look at our clause again and see what we have there as far as remedies.

>>: So in our clause, did we anticipate defining the remedies and the consequences should there be a force majeure event? And did we? No, we didn't. So we need to redraft it again. But this is starting to take up quite a bit of room. So again, brevity is my friend, but you know, this is a very important situation, so we're going to need to address it. Now, before that - I sort of glossed over it - I want to answer this question I can 'cause it's a very good one. The question was what about catch-ons, like any other costs beyond the party's foreseeable control, right? And if you look at it, it says are there - other clauses beyond the parties reasonable foreseeable control. But that becomes an evidentiary battle, right? So COVID opened up in China and it went to Italy, and for months, we were walking around like nothing was a problem, right? So is it foreseeable that this virus would carry over to United States? Well, that's going to be a fight in court. And how do you feel about vagueness on a force majeure clause Sara? Do you think the courts are going to be...

>>: No. I mean, that's the thing, is it really, truly has been shown over time that express provisions are the ones that prevail. Everything else has be argued. And you know, good luck arguing. And like we said too, contracts, there's an assumption they're meant to be kept and so it's an uphill battle.

>>: Now, the other thing is - and I didn't really - I do - this will be a whole nother topic, but there is a doctrine called contra proferentem, which is -

© MCLE, Inc. All rights reserved I'm mispronouncing slightly. But it basically is Latin for all vagueness will be construed against the drafter of the contract, and you might see in some of the other boilerplate that it says neither party will be considered the drafter of this contract. That's contract proferentem or proferentem whatever. I'll look it up later. So if you are the drafter of the contract, this is your contract and it says other causes beyond the party's reasonable foreseeable control, you are now at a disability 'cause the rebuttable presumption under that is that the non-drafters interpretation of that is going to prevail, right? So it depends on what side of the situation you are. Yes, put it in. Yes, you might win the evidentiary battle, but it's better not to rely on it. And that's why you need to try to grab the greater sweeping issues and make sure they're covered, but also think of the very specific issues that might affect you. So the sweeping issue is pandemic - the specific ones are endemic, epidemic and outbreak, and you have to approach it from both sides. All right. So to - thank you. Sorry I glossed over that answer. Right, so now back to remedies and conditions. The remedies and conditions that I am going to add to our clause, which failed to have them, are as follows, as follows - there we go. So again, real estate is tight, so I'm going to try to be as brief and I'm going to try to be as sweeping as possible. Now, if this is a business-to-business contract for a million-dollar construction job not a tactic that's been posted for the, you know, consumption of products or services that it's commoditized, I'm going to spend a lot more time on this, right? I'm going to try to anticipate the needs, but I don't know those right now because this isn't for, you know, a major contract. And - but if you have more context, then be more specific, and you hear less about real estate and more about, you know, getting what would really be right for your client, but unfortunately, that's a variable based on the situation. So based on this being a template - and I'm trying to protect my provider of devices, services and software - I'm going to just be broad and say, all right, what are the remedies and what are the consequences? Well, the remedy would be that I get to terminate this contract. A force majeure event happened. It's going to be commercially unreasonable for me to perform under it, so that means it would cost me money. Not that I can't, but it would cost too much to, and then my remedy would be that I can terminate this contract. Well, what happens to the consequences, right? All right. You terminate it. Well, now I'm trying to be very broad and say, well, there are no consequences. I'm

© MCLE, Inc. All rights reserved going to just disclaim them all. So there are no - there is no penalty or liability. Now, that's - I think that's what you're going to need to say if you want to get it down to zero. If not, you're going to have to go back and look at your - at the rear side on this. We'd have to go back and take a look at the limitation liabilities, consequential damages, exclusive revenue, disclaimer warranties, all the other things that shows us what we're leverage initially going into the clause. But with this very short but broad clause, I think I'm protecting my client by giving them the remedy of the - to terminate the contract with the consequences would be none. So did we address the second one, third one?

>>: Check. All right. So now back to the question that asked is there an implied force majeure benefit? So let's say our clause does not - our clause either doesn't specify what's going on or we don't have a force majeure clause at all or it's a unilateral force majeure clause and the other party's protected but we're not. There are some arguments in contract law, and Sara's going to talk us through.

>>: Yeah. So in the event that a party is unable to assert a force majeure clause, like Frank said either you're (inaudible) or you just don't have one, there are several closely related doctrines that are going to apply, and those are , and . And I just want to quickly look over these. Impossibility is the toughest one. And for impossibility, the courts will look at three elements. The first involves something expected. It must have occurred. (Inaudible) of this unexpected occurrence must not have been due to the negligence of either party. And importantly, the circumstance must have been - must have rendered performance under the contract impossible. And when you think about impossible, you know, there aren't too many situations where performance is completely impossible but there are some. So some examples would be if a party is injured and can no longer perform the duties identified in the contract, or if the property is stolen or destroyed. For example, a contract for home remodeling that can no longer be performed if the home is destroyed. And interestingly, when I was looking into this, I - 2020 has been so crazy, and I think we forgot that we started the year with the Australian bushfires. And I started to see - so in Australia, they had horrible fires, and I saw some cases arising from companies in Australia

© MCLE, Inc. All rights reserved that were asserting whether or not they had a force majeure clause. They were asserting impossibility as a contractual defense because their entire company was starting to drown, so that's a good example of a possibility. However, more often, circumstances create a situation that is not technically impossible but better described as impracticable. And for this reason, many courts have moved beyond requiring strict impossibility and recognize the doctrine of commercial impracticability, and this doctrine has been codified in the UCC. It's called excuse by failure of presupposed conditions. So under both common law and the UCC, to assert a defense of impracticability, you have to show a number of things. You have to show a supervening event - either an act of God or an act of a third party - that made your performance impracticable. You have to show that the non- occurrence of the event was a basic assumption upon which the contract was based. You have to show that the occurrence of the event was not your fault and that you did not assume the rest of your occurred, and also that you have taken reasonable effort to overcome the obstacles. So here, again, we see the need to show that you are trying to mitigate. Under the doctrine of impracticability, performance will not be excused if the destructive event was foreseeable. For example, let's say cost increase. Well, that's not enough, or let's even say that the market collapsed, which does seem very destructive, but the rising class of markets too has not been shown to be enough because these things are, you know, foreseeable. Some circumstances, which courts have found to be impracticable, include severe shortages of raw materials due to war, embargo, crop failure or shut down of major sources of supply. And now, I haven't looked into this, but it strikes me that with COVID, we actually have seen shortages, particularly around surrounding, like, personal protective wear, hand sanitizer, toilet paper. We've seen a lot of these shortage issues, and I would guess that the defensive of impracticability would be appropriate there. And then finally, we have the defense of frustration of purpose. Now, unlike impossibility or impracticability, which both involve duties, frustration of purpose specifically involves the reasons for the contract. In order for frustration of purpose to apply, both parties must have been aware of the primary purpose of the contract to begin with. And then to discharge performance under this doctrine, you have (inaudible). The first one is that the frustration must relate to the principal purpose of the party in making a contract, which just basically means if both parties have

© MCLE, Inc. All rights reserved to understand that this contract wouldn't make any sense without this object, we'd have been frustrated. Secondly, the frustration has to be substantial. So it's definitely not enough under case law that the transaction has become less profitable than you expected it would be and unfairly that the non-experience of this frustrating event must have been a basic assumption on which the contract was made. The frustration is not a defense if the intervening frustration was controlled - or controllable, rather, by the (inaudible) or if counter performance remains valuable. Here again, you see the need to mitigate. And then the best example where frustration is perfect would be - we're seeing this to business closures, cancellations of events. Now, when you look at these three defenses, it's important to know that all three of these - that this event may be temporary and suspend your duty to perform only while the impossibility, the impracticability or the frustration exists. Once it's gone, you're on the hook again. Oh, you muted it, Frank.

>>: All right. So these are your - basically, these three theories encompass your implying force majeure. These are contract theories, and they will get you out of your obligations on a short-term basis as Sara said, and you have to prove these. Now again, remember that if this is your contract, ambiguity is going to be viewed in the best light of the other party. So again, you had your catch-all all, but whether or not it's going to work, you don't know, but that is under force majeure clause. These are outside the force majeure clause but within contract law still. So these are the things that you could argue that makes the contract unenforceable for that short- term time. Now, let's say you either don't have a force majeure clause, let's say you have a force majeure clause, it doesn't protect you, let's say you have force majeure clause and the clause doesn't protect you because you didn't listen outright or maybe you were silent as to the remedy, the notice, and you've also put up all your contract defenses on impossibility, impracticability, frustration of purpose, now what, right? Well, you're not quite done with all your defenses. There's one last defense, and we can go back to the Black Plague, think about the - think - for this. And what happened was if you recall the first thing, we talked about was . That was a concept that came out of the Black Plague, and it's outside contract law. This is an idea that says you're getting value for something. It's outside the contract. I did something for you and there's an

© MCLE, Inc. All rights reserved inherent value of it. Now, chances are it's not going to be for the same value that the contract says and it's going to have to be argued what the value is, but you still would be able to bring a quantum meruit case against the other party to say at least for what I did, you got the value and I need to be compensated for that. So you aren't left high and dry completely. But knowing that, changing your contract moving forward to the new force majeure clause is the prudent. It's the right thing to do for your clients. And we understand that you have at least one small clause that your client doesn't care about that has multiple factors that we talked about for an hour that can protect your client. So it's much more important than you would think, and you know, thank you for the Black Plague. There was at least one good thing that came out of it, which was quantum meruit. And by the way, back in - when - the Black Plague dates, they call it assumpsit, right? It wasn't called quantum meruit. That was the evolution over time, but they had an assumpsit. It was an assumption of value, or - and it actually stands for something he undertook, so that's what assumpsit means. He undertook something, and you got the benefit. Now if you enjoy this topic like Sara and I do, we have - in the material that will be posted, there's about 101 pages of information more on the Black Plague, coronavirus, force majeure, negotiating contracts. It's all there, or you can always just reach out to us, and we will happily answer questions. 'Cause obviously, it's something that we enjoy. Let's see. I'm going to open the floor for any questions, and another one just came in. And I think this one's for you, Sara. It says is impossibility precluded if you have a force majeure clause - it's more specific and doesn't help you? OK, well, I unfortunately just answered that, right? The answer is no, right? 'Cause these are contract theories, and these are the things that you go to when you are outside the protection of your contract. So, no, it's not precluded, but yeah. So these are sort of the last Hail Mary throws say is impossibility - well, actually, quantum meruit would be - but these are sort of the second to last throws to protect you. Much better off with a more specific clause, but if you don't, you would not want to forget these, and you definitely want to argue. All right. We have a little extra time. Does anyone want to discuss the Black Plague any further? Feel free. Or COVID or 9/11. If there are no more questions, Sara, do you have any other points that you want to bring up that we may have forgotten about?

© MCLE, Inc. All rights reserved >>: No. I just want to say that in the research that we've done, people across the whole nation - I mean, this is - everyone talking about this. It's very important. I don't see it going away at all because things still remain very uncertain with COVID. And I really do think it is - it's a good time to take a look at this provision that - this clause that I don't think most of us gave a second thought to - you know? - in 2019 and certainly now. It's just become a hot topic issue. It's just - it's - there's lots of people talking about it, writing about it. I know Frank and I are definitely amending the clause that give.

>>: We are actually just proactively pushing out new clauses to our clients and saying here's what we're going to do. We've learned something from this whole event, and you know, here's your new clause. And you know, I feel like it's an obligation for us to do that.

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