Can you perform or is this a force majeure event?

All across America, many corporations — especially those staffed with well-paid lawyers — have seen an opportunity not to pay suppliers, not to honor contracts or, simply, to invoke a delay of indeterminate length to the performance of contractual responsibilities. How? They find comfort in a clause buried deep in every contact called “Force Majeure.”

Simply put, contracts between companies or individuals call for one side to give the other side something in return for financial payment or exchange (you deliver my goods and I supply your wages). Those payment dates — and other performance issues — can be delayed when something happens that was either an Act of God (floods, tornadoes, etc.), any war event in the territory covered by the agreement, changes in laws that were not foreseen by either party before the agreement was concluded, strikes and labor disputes that affect the progress of the use of the rights in the agreement and, basically, unforeseen accidents. “Unforeseen” is a key word here.

In my business (licensing rights for print or media adaptation) I have rarely see a definition of “force majeure” include any mention of epidemic or pandemic specifically. And yet, more than one major company (Disney, for example) are claiming that the pandemic qualifies for a delay in their deadline for payments and contractual performance. 

Now, some could say that the government (state, not federal, so far) lock-down on normal business attendance qualifies as such a disruption that was unforeseen and therefore the disruption is in the spirit of the force majeure clause in the agreement. However, this flies in the face of the work-at-home order all these companies instituted wherein employees are required to continue their use of the rights and materials all the while the parent company delays payments and performance. In short, the workers continue using the agreement rights granted while the right’s holders are left out in the cold financially.

Ah, but there’s a precedent in law, especially in New York and California, where the party seeing to invoke force majeure (well, Disney simply invoked it, without “seeking” any discussion) must attempt to perform its contractual duties and even if partly successful it cannot invoke complete force majeure suspension of agreement terms. In short, if all work is forced to stop, that’s a legitimate excuse to invoke force majeure. If work is not cut off, then, if the parties are fair with one another, they should decide jointly on how to proceed.

To do otherwise, is to allow this terrible pandemic to wreak more havoc on lesser financial parties than necessary. In these times of joint responsibility and suffrage, the last thing we need is an overreach of power over the little guy.

 

Writer Peter Riva, a former resident of Amenia Union, now lives in New Mexico.

The views expressed here are not necessarily those of The Millerton News and The News does not support or oppose candidates for public office.

Latest News

Demolition of Millerton’s fire-damaged highway and water building begins

Demolition crews from BELFOR Property Restoration began demolishing the fire-ravaged Water and Highway Department building in the Village of Millerton on Monday, Oct. 27

Photo by Aly Morrissey

MILLERTON — The long-awaited demolition of Millerton’s Highway and Water Department building began Monday, Oct. 27, marking a major milestone in the village’s recovery from the February fire that destroyed the facility.

The demolition, handled by BELFOR Property Restoration, is now underway. Eddie Collins Park, located next to the site, remains open to the public, though visitors are asked to steer clear of the demolition area.

Keep ReadingShow less
Keane Stud developers present environmental impact analysis

A preliminary draft of an impact analysis study for a Keane Stud subdivision application drew residents to a Planning Board meeting on Wednesday, Oct. 22.

Photo by leila Hawken

AMENIA — Residents had the opportunity on Wednesday, Oct. 22, to weigh in on the proposed Keane Stud subdivision, a plan that would divide roughly 605 acres into 27 mostly residential lots, during a meeting of the Amenia Planning Board.

The session was part of the State Environmental Quality Review Act process, following the board’s decision that a Draft Environmental Impact Statement should be prepared to evaluate potential environmental and scenic impacts from the project.

Keep ReadingShow less
Amenia investigates budget officer over use of clerk’s signature
Amenia Town Hall on Route 22.
Nathan Miller

AMENIA — Amenia budget officer Charlie Miller has been accused of submitting the town’s tentative budget with an old signature from Town Clerk Dawn Marie Klingner.

Klingner said she reported the issue to the Town Board in executive session on Oct. 3, prompting members to assign the town’s labor attorney, Robert Schofield, to investigate.

Keep ReadingShow less
Local, county candidates gather for NorthEast-Millerton Library forum

Millerton and North East residents crowded into the NorthEast-Millerton Library Annex on Friday, Oct. 24, to hear from 10 candidates seeking office.

Photo by Christian Murray

MILLERTON — A crowd of about 60 people filled the NorthEast-Millerton Library Annex for a political Q&A session with candidates for local and county offices on Friday, Oct. 24.

Panels of candidates rotated across the stage, answering questions submitted beforehand and impromptu questions from audience members in the room.

Keep ReadingShow less