Know This Contract Clause During The COVID-19 Pandemic

Written by Posted On Monday, 23 March 2020 11:40

Since the onset of the Coronavirus, business as we know it has changed. The pandemic has created all sorts of monumental disruptions in business as cancellations and delays have affected all sorts of industries: hotel, travel, events, professional sports tournaments, concerts, and real estate closings. Questions arise as to whether underlying contracts provide for a party who cannot fulfill the contract’s terms, for reasons outside of one’s control, to not be considered in default.

What is Force Majeure?

force majeure

Usually, contracts have “force majeure” clauses that allow for parties to delay performance or actually get out of certain obligations in the event of unforeseen or uncontrollable events. Simply put, a party‘s performance under a contract is excused when certain circumstances beyond their control arise, making performance of the underlying obligation commercially impracticable, illegal, or impossible. Force Majeure clauses are common in most contracts and can prove to be invaluable when determining whether one party’s performance is truly outside of that party’s control.

The way these clauses are worded is key and has evolved since the September 11 tragedy as well as the storm damage of Superstorm Sandy. Not all force majeure clauses are alike, as it depends upon the purpose of  the contract as well as how well the parties’ thought of the potential implications for an otherwise remote or unplanned event or catastrophe.

How Has COVID-19 Effected Real Estate Contracts?

In real estate, the virus has delayed closings for a multitude of reasons. Buyers or sellers may be out of the United States, and do not have access to an open U.S. Consulate or Embassy, and therefore are unable to obtain the proper notarization of documents from where they are. International Civil Law Notaries, who can notarize documents outside of the U.S. are, however, currently unable to perform such functions due to COVID-19. Further, with social distancing being the new norm, more and more parties engaged in closings are requiring virtual remote online notarization especially in order to close residential real estate closings. And, specific to COVID-19, a Coronavirus Extension Addendum to Contract has emerged.

real estate closing delays

Will Force Majeure Clauses be able to Include all potential situations?

It is fair to say that negotiating contracts has and will continue to evolve as a result of COVID-19. It is nearly impossible to predict for every single possibility in life; however, moving forward we all have much to consider, and our business negotiations and everyday dealings with each other will change.

In these ever-evolving times, we wish you all to be safe and well.

From the trenches,

Roy D. Oppenheim


Oppenheim Law 
2500 Weston Rd #404
Fort Lauderdale, FL 33331

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Roy Oppenheim

From Wall Street to Main Street, Roy Oppenheim is a successful serial entrepreneur and attorney focusing on Florida real estate, foreclosure defense, loss mitigation and Internet ventures.

He founded Oppenheim Law in 1989 with his wife Ellen Pilelsky and uniquely positioned the Firm as one of Florida’s leading boutique law firms in Weston, Florida.

Serving national, international, and local clients, Mr. Oppenheim has the highest rating (A-V) conferred by Martindale Hubbell Law Directory, the most respected directory of lawyers and law firms in the U.S.

In 1989, Mr. Oppenheim also co-founded and served as general counsel to ShopSmart Corp., the company that originated and owned the GNC Gold Card Program, a program that continues to this day and was one of the first cross-promotional programs of its kind.

In addition, in 1994, he co-founded Weston Title & Escrow, the oldest title company in Weston, Florida, and he currently serves as its Vice President. In 1999, Mr. Oppenheim served a one-year term on the board of directors for Catalina Lighting, a publicly traded company on the New York Stock Exchange.

Growing up in the Bronx, Mr. Oppenheim learned to be focused on success and driven to always persevere for opportunity.

In 2009, he started the South Florida Law Blog, which was voted the best business and technology blog by the South Florida Sun-Sentinel. He also serves as an expert witness on title industry practices.

Mr. Oppenheim has also co-authored two law review articles, Deconstructing The Black Magic of Securitized Trusts, published in the Stetson University Law Review’s Spring 2012 Edition, and The Emperor’s New Clothes, published in the William & Mary Business Law Review Volume 6.

Today, Mr. Oppenheim is a sought-after legal expert on issues relating to the real estate crisis and beyond. In addition to his own blog, he also has been a contributor to Yahoo! Homes, and featured on HuffPost Live, FOX News, and Lifetime TV. In addition he has been quoted in prominent national publications, including USA Today, The New York Times and Huffington Post, among others. Mr. Oppenheim also understands the power of social media, and can be found on a variety of social media platforms.

Mr. Oppenheim also speaks fluent German.


  • Florida Bar, 1987; Member of the Real Property Probate and Trust Law Section
  • New York Bar, 1987; United States District for the Southern and Eastern Districts of New York, 1987
  • U.S. District Court, Southern and Middle Districts of Florida, 1993


  • Princeton University, A.B., cum laude, 1982
  • Northwestern University School of Law, J.D., 1986
    • Member of the Northwestern University Law Review
    • Member of the National Moot Court Team

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