A general “force majeure” (or “act of God”) clause is often included in lease agreements, and in most cases, its definition is termed broadly. Such a clause will only apply in circumstances which are beyond the parties’ control, which human foresight could not have anticipated, and which make performance in terms of the contract objectively impossible.
Over the past two years, whether the outbreak of Covid-19 and the resulting National Disaster (and lockdown regulations), were categorised as such an event, and thus deemed a “force majeure” depended on each case’s specific circumstances. For example, where furniture and fittings remained on the premises of a restaurant, even although the restaurant was not trading during the lockdown period, the landlord may have been able to show that the tenant had partial or total beneficial occupation, and gained some form of value or benefit from the occupation. The fact that prevailing circumstances (lack of income) made performance (payment of rent) uneconomical or difficult does not necessarily mean that it had become impossible to fulfil the terms of the contract.
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