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Parties in complex commercial cases that are accused of defaulting on or breaching a contract may invoke the defense of impossibility, arguing that performance of contractual obligations was rendered impossible by an intervening event. Under New York law, those arguments rarely make it past the motion stage. Courts apply the doctrine narrowly, only to executory contracts and only where the intervening event was both unforeseeable and destroyed either the contract’s subject matter or the means of performance. The related doctrine of frustration of purpose may apply more broadly, but only where it would make little sense to perform on a contract because of an intervening event. The narrowness of these doctrines — and their questionable utility for litigators — underscores the importance of striving during the contract drafting process to include contingency clauses providing for foreseeable possibilities and language making clear the contract’s purpose.
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Four Class Actions Allege Rent Overcharge Chicanery
By Lucas Ferrara
On Oct. 29, 2020, a Manhattan real-estate firm filed four separate class-action lawsuits highlighting three different maneuvers landlords used to evade the requirements of a tax-abatement program.
Finding Common Ground In Lease Provisions During COVID-19
By Fredric P. Lavinthal and Eric M. Finkelstein
This article seeks to examine key current issues, and offers practical advice to landlords and tenants seeking common ground to address the ongoing financial toll of the pandemic.
Settling COVID-19-Related Commercial Lease Disputes
By Frank Burke
This article examines how shutdown actions might be approached and resolved by settlement by applying a series of contract performance doctrines that inevitably arise during these types of situations.
What a Biden Administration Might Mean for Commercial Real Estate
By Erika Morphy
A national-led effort to push back against the virus will hopefully drive down infections enough until a vaccine becomes available. This can only help commercial real estate as it is clear that the economy will not fully recover until the coronavirus is vanquished.
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