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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.
Common-Area Risk Abatement: Who is Responsible?
By Janice G. Inman
When customers, employees and others invited to or simply passing by a leased commercial property are injured, and want compensation, who will be on the hook for the costs of bodily injury and property damage — the landlord, the tenant, the maintenance and security contractor hired by them, or some combination of these?
The Bankruptcy Code’s Inherent Limitations for Struggling Golf Courses
By Daniel A. Lev
Part Two of a Two-Part Article
As addressed in the first part of this article last month, addressing the problems confronting golf course owners seeking financial restructuring under Chapter 11, the ability of a debtor to reject a restrictive covenant under Section 365 or to sell free and clear of a covenant under Section 363(f) is limited and the obstacles are difficult to surmount.
Commercial Rent Control in New York: Back Again?
By David B. Saxe and Brett Dockwell
As retail vacancies have multiplied in New York City in recent years, some in the City Council have advocated for the reconsideration of commercial rent control, as set out in a proposed piece of legislation, the Small Business Jobs Survival Act This article provides a brief, nontechnical review of the bill and the legal and practical hurdles it faces if enacted.
What to Consider When Drafting Renewal and/or Expansion Terms in Arbitration Clauses
By Elizabeth Kluger Cooper and Kimberly C. Jones
Navigating through a murky arbitration clause is no easy feat. Assuming familiarity with the basics, the following is a list of considerations that should prove valuable whether representing the tenant or the landlord.
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