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commercial contract review – Covid-19 and force majeure clauses in contracts (goods and services)

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Does your existing contract give you any options as a result of COVID-19?

Contracting parties are often unclear as to their contractual options or remedies under English law as a result of disruption caused by COVID-19 and related UK government “stay in place” restrictions and social mobility legislation.

We have received an increasing number of queries from clients relating to force majeure and/or contractual frustration, particularly as lockdown restrictions continue and look to remain in place for some time.

We have therefore built this fixed price product to carry out a review of an existing contract or set of terms and provide a formal written opinion as to whether force majeure and/or frustration apply, the available remedies available to you and any procedural requirements imposed on you in order to benefit from them.

This product will provide tailored contractual advice about the immediate next steps to take in order to exercise your rights without being in breach of contract and how to limit your legal and commercial exposure. It will be particularly appropriate for those businesses on either side of their English law contract who have been approached by their customers, clients or suppliers who consider that they are, or may be, entitled to stop performing all or some of their obligations under their contracts with you, or where you are just contemplating your own options and need clear advice on what to do.

It is not essential that your contract or standard terms contain a force majeure clause for this product to be suitable.

How it works

We will offer an initial call with you to better understand your objectives and gain some context into the contractual relationship. We will then conduct our review and provide a structured, formal written opinion advising you of the position within 7 days.

This product only applies to specific, limited questions and is not applicable to a general commercial contract review (for which we offer alternative products which may be of interest). To ensure consistency of advice, our lawyers use our own internally constructed ‘triage tool’.

Stage 1- your initial call with us

We will arrange an initial call with you of up to 30 minutes. The purpose of this call is to understand:

  • The nature of your contracts or terms;

  • Your commercial objectives and preferential outcomes;

  • Any relevant context (such as how you have been affected, whether you have tried to exercise your rights previously, and the outcome(s) of such attempts, or whether or not your contracting counterparty has asked you any specific, related questions);

  • Whether you require us to view one contract, or a series of contracts; and

  • Any additional or specific related queries or concerns you have on this issue.

Stage 2 - The contract review

When we receive a copy of your English law contract or standard terms, we will undertake the review in relation to the following specific questions:

  • Whether there is a force majeure or change of law clause within the contract;

  • Whether the relevant clause specifically anticipates coronavirus, national epidemics, global pandemics or related government restrictions or change in laws;

  • Available remedies and next steps if there is no force majeure clause or the relevant force majeure clause is silent on coronavirus or related government restrictions;

  • What procedural steps you are required to take in order to exercise your rights; and

  • The remedies available to you.

Step 3 – Production of the report

Following our review of your contract or standard terms in step 2, we will provide you with a structured, formal written opinion advising you of the position in response to the questions we have considered, and any relevant context that you have provided in step 1.

Next steps

If you would like to find out more, please contact us. Our fixed fee and charging rates are available on request, and we look forward to speaking to you.

If you require us to review and consider similar queries in relation to multiple contracts, we will discuss this with you as part of step 1.

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