There has been much discussion of the legal issues raised by the
pandemic when contractual obligations can no longer be met. This
memorandum notes some of those issues.
Waiver
Contracts are voluntary arrangements. Likewise, enforcement of a
contract is a voluntary act. One may decide not to insist on strict
compliance. This can raise questions as to whether rights have been
waived, and, if so, to what extent. Contract rights can be waived
"fully or only partially," depending on the
circumstances.1
A decision to forbear from the enforcement of a contract right
can be a valuable concession that serves as the basis of a new
agreement, but ideally the new agreement will be drafted with care.
Otherwise the decision can easily turn into a dispute. For waiver
of contract rights is an issue of intent,2 and questions
of intent are often difficult prove. "[T]he intent to waive is
usually a question of fact,"3 therefore any failure
to make one's intention explicit and
