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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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Issues Relating to RLUIPA Safe Harbor and the Equal Protection Clause
By Steven M. Silverberg
Recently the United States District Court for the Southern District of New York grappled with issues relating to local zoning restrictions on houses of worship.
Crowdfunding and Mortgage Lending
By Jeffrey B. Steiner and David Broderick
This article discusses several topics that lenders should consider when making loans to borrowers that are indirectly funded using crowdfunded equity.
COVID-19’s Impact on Real Estate Valuations
By Michael Rikon
Valuation of real estate during contemporary times is challenged and will continue to be so for several years. In a forced sale, a court should only consider pre-COVID-19 data whether it be comparable sales from 2018-2019, or financial data from the same period.
Confession of Judgment Provisions In Commercial Leases
By Megan E. Moyer and Kevin M. Levy
In states where they are enforced, a properly drafted confession of judgment clause in a commercial lease can be one of the most valuable tools in a landlord’s toolkit for enforcing its leases and preserving its remedies.
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