Sunday, April 19, 2020

Force Majeure

Force Majeure is a sexy French name for a powerful excuse for failure to perform.  It is much in the news, and is being invoked by major oil companies and very small publishers to welsh on contractual agreements.

"To welsh" is rather a pejorative term, and might also be politically incorrect, as it implies that residents of Wales are synonymous with financial unreliability. No offense toWales or its people or princes is intended here.

Contract Standards publishes a fair definition of Force Majeure.

The Shearman & Sterling legal blog is highly edifying on the burning question of whether or not Covid-19 is a Force Majeure event. Of especial interest is their three-point test of whether or not the critieria for Force Majeure is satisfied.

Could an author who is locked into an unacceptable contract declare Force Majeure because of Covid-19? This author only reads legal and publishing blogs, but if BP can put off purchasing LNG equipment for an entire year (when the market is bad for oil and gas) on the grounds that the pandemic is beyond its control, the pandemic prevents BP from performing, and BP took all reasonable steps to mitigate the consequences of the pandemic on its operations, maybe authors working from home could claim the same, if they wanted to do so.

It's not easy to write at the same time as unplanned home-schooling, or while having to watch adorable ankle biters every second of the waking day.

The Authors Guild has a guide to help those affected by Covid-19

Recently, Michael Seidlinger of Publishers Weekly wrote about 15 books and authors hurt by the coronavirus.

Book tours are cancelled, book stores are closed, sales are down, allegedly Amazon is giving preference to promoting third party book sales (for which no royalties are paid to authors, of course), and piracy is soaring. Californian freelance authors have even more about which to worry.

Bryan Cave Leighton & Paisner have a very good set of bullet points about Force Majeure and Covid-19, whether one is on the receiving end of a Force Majeure notice, or considering dishing out one.

An author is certainly helpless if under a governor's local executive orders to keep schools closed for the rest of the school year, and to confine everyone to their homes in fortnightly increments.

Foster Swift Collins & Smith PC detail some of the Covid-19 restrictions for those "cabined, cribbed, confined" (Macbeth) in Michigan.

Given the lift to morale that one could get from painting a room --or even an accent wall-- in these S.A.D.times,  it seems particularly cruel that in some places, one may not even buy paint!

All the best,
Rowena Cherry 

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