Banco Santander (Brasil), S.A. v. American Airlines, Inc., No. 20-cv-3098 (E.D.N.Y. 2020) (requests the declaration that it may be terminated in accordance with the force majeure clause including “the act of God” and “government act”; The defendant argues that the applicant did not assert a right because the agreement took into account the force majeure event and these provisions provide for it; The applicant argues that it sufficiently maintains that the agreement does not take into account the force majeure event and claims such a statement.) (07/10/2020 Complaint); 24.08.2020 Additional recourse; 09/04/2020 Request for release for non-request from the defendant; 25.09.2020 Request to quash the complaint for non-compliance with a claim, refiled under seal 10/07/2020; 10/09/2020 Defendant`s response in support of the termination application) If I cannot manage my business, am I subject to the lease? If the government shuts down my tenant`s store, not me, why can`t I cash in rent? These questions arise for thousands of tenants and business owners during the COVID 19 pandemic. These issues focus on the importance and introduction of force majeure clauses in commercial leases. The closures caused by the COVID 19 pandemic have dealt a huge financial blow to the retail sector and led professional landlords to include rental facilities in the leases of existing and potential tenants in order to maintain occupancy. Short answer: it depends on that. The language of the contract or the language of the lease determines whether COVID-19 falls within the scope of a force majeure case under this agreement. The application of force majeure should therefore be considered on a case-by-case basis.

Comparative difficulties must be taken into account. A multinational company that invokes the “force majeure” to apologise for the payment of rent for premises owned by a person dependent on rent for survival would bring enormous hardship to the landlord, whereas in the opposite situation, tenants may be affected in the same way. While this is not a legal argument, it should encourage the parties to find a convenient solution for both parties to avoid difficulties in times of stress. While protection may be sought under the force majeure clause, this could be unfair. Almost all commercial contracts, including most commercial leases, contain some kind of force majeure clause. In general, force majeure clauses include a list of specific events that constitute a case of force majeure. This may include strikes, lockouts, labour disputes, acts of God, acts of war, terrorism and terrorist activities. In addition, it may include the inability to obtain adequate services, work, materials or substitutes. There are also government actions, riots, fires, floods, earthquakes or other causes that are outside the reasonable control of the party, which is engaged. Valentino U.S.A., Inc.

v. 693 Fifth Owner LLC, No. 652605/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (plaintiff/tenant to explain that the rental of his commercial property was thwarted by the COVID-19 pandemic and the associated executive orders, and is seeking an alternative explanation that their performance was made impossible under the lease; The defendant/landlord seeks the dismissal of the claim on the grounds that the tenancy agreement contains a clause that assigns the plaintiff/tenant the risk of closure in the event of “inevitable delays” defined to include “restrictive state laws or regulations” …