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Contract Review: Does Covid-19 Excuse Performance?

by: Phillip B. Rarick, Esq.

We have been helping small business owners survive and thrive – in good times and bad – for over 25 years. Here is how we may be able to help you in this current challenging business environment.

1.    Contract Review and Force Majeure. A Force Majeure clause is a standard clause in many contracts. If you have a contract you are trying to get out of – or the reverse – if you have a person trying to nullify performance under your existing contract the interpretation of the “Force Majeure” clause will be a determining factor.

The Force Majeure provisions may allow the performing party to escape its contractual obligations because of unforeseen circumstances that would render performance illegal, impossible, impracticable or inadvisable. Many will argue that Covid-19 is such an event.

We are available to review your contracts and help you assess the risk of performance or non-performance.

For more information on Force Majeure, read attorney Jacqueline Bowden Gold’s recent post: Unable to Fulfill Your Contractual Obligations Due To Covid-19?

2. Has your business insurance carrier denied your claim due to Covid-19? If so we are available to evaluate your claim.

Insurance policies are complex and confusing – by design. But the reason you have been paying so much for business insurance is to cover losses you can’t anticipate and no one – except for some pandemic experts – anticipated this virus 6 months ago. Now is the time for the insurance companies to step up. But you can be sure that they will vigorously fight these claims.

Many standard Business Owner Policies cover loss of income from certain events.  Since 2006 most insurers have excluded losses caused by virus or bacteria. However, even though there is such an exclusion in your policy, you should still file a claim because it may be argued that your losses were the result of governmental orders shutting down or restricting many businesses.   The insurance company will likely deny your claim, but you still have legal remedies to challenge the company.

Bottom line: File your claim now and force your insurer to adjust the claim.

Note: For a flat fee, we will evaluate your claim and discuss your legal remedies.

3. Paycheck Protection Program.

We have been doing our best to keep you advised regarding the latest developments in this program. We predicted that the $349 billion fund would quickly run out of money and as of April 15 it was gone.

Congress currently has more funding under consideration but presently – big surprise – they are deadlocked. Hopefully you have your applications in as some banks are not taking any more. If not, still apply in hope that Congress will infuse more money into the program. For those lucky enough to have received funding see our  5 Quick Tips for Maxing Out Loan Forgiveness.

We are in this together – and together we will beat this virus! Stay tuned for more Alerts.

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