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The parties agree that settlement is hereby deferred to the 10th working day after the Government reduces the Covid-19 Level to Level 2 or below, or to such other date as may be mutually agreed. For the sake of clarity neither party shall have any claim against the other in relation to this deferral.
COVID-19 Level 4 will in almost every case be a “force majeure” event.
The purpose of Force majeure clauses is to provide protection where performance under a contract is affected.
Most “Force majeure” clauses identify an epidemic or pandemic as such an event. If the particular clause (in the contract under examination) does not identify this then it may still be a Force majeure event by reason COVID-19 was and is –
Whilst COVID-19 was unforeseeable it could be argued it became a foreseeability event from the time of its outbreak (in New Zealand).
It follows that if you enter into a contract now that Level 4 COVID applies that it is a foreseeable event. If the contract was made before COVID-19 then the position is relatively clear, namely –