The Delhi High Court in another case entitled Gaurav Jain vs. Union of India, while it rejected a petition on the waiver of rent of tenants during the period of COVID 19 Lockdown stated that the power/discretion for the first waiver of rental vests with owners who are contractually entitled to the same. In addition, the Court stated that „if the lessor has the right to receive the rent or consideration in accordance with the law, in accordance with the contractual agreement reached between the interested parties, the Court cannot waive this amount by a general injunction of the nature requested by the petitioner.“ As with any rented property, it may be necessary for a tenant to invoke a force majeure clause. As a general rule, a lease requires immediate notification of a force majeure right. Several courts have rejected the applications of the tenants of force majeure if they have not provided appropriate notification under the tenancy agreement. If you connect this to the GovCon world, you won`t see a classic force majeure clause in a government primus. (And if you let me know and I`m going to retire after 35 years of work without seeing one). These clauses are generally found in sub-contracts and other commercial contracts such as supplier contracts, leases and certain professional services and consulting agreements, among others. If there is no force majeure clause in the contract (or if there is no written form of the agreement), then it will not be possible to use a force majeure defence and you will have to make other positive densities based on the Texas common law such as the defense of impossibility of delivery.
It is generally more difficult to avoid liability in the event of a breach of contract according to the doctrine of frustration than if your agreement has a well written clause on force majeure. However, depending on the circumstances, the coronavirus pandemic may fall within this doctrine. But it is advisable to get legal advice before counting on it. As noted above, most courts closely suspend a force majeure clause and will consider the effect of a force majeure event on the obligations of the parties. If the continuing tenancy obligation is not explicitly stated, tenants may argue that the force majeure clause excuses their obligation to pay rent under the tenancy agreement; However, there is little precedent to support this concept in general.