The “doctrine of frustration” and “force majeure” act has evolved over time, but the current Covid 19 pandemic will play an important role in how treaties are written in the future. Whether a case justifies the referral of section 56 of the Contracts Act must therefore be determined by the facts and circumstances. The doctrine of frustration in Section 56 can be invoked by the party concerned to suspend the payment of rent during the freeze and/or terminate the contract. Pre-written notification is mandatory and recommended. In the event that a tenancy is completely silent about a case of force majeure or the consequences of not using the premises for which it is leased, the parties should check whether they fall within the four corners of paragraph 108 of the TOP Act. The application of the concept of force majeure depends entirely on how the parties establish or agree in their contract. Where the event occurred and the parties argue over the interpretation of the force majeure clause, the Court of Justice would be weighted and focused on what was agreed exclusively by the contracting parties in the contract and would not allow a party to protect itself from liability arising from an event that was not provided for in the contract. It is therefore important to conduct a review of each rent to verify (i) the existence of a force majeure clause; and (ii) the consequences of the appearance of a case of force majeure, that such a force majeure clause provides for the cessation or suspension of rights and obligations. Unless the force majeure clause is expressly required, the inability to “use” the premises does not meet its requirements alone. “Use” doesn`t just mean the ability to come and go. It also includes its use for hosting devices, servers, furniture, security personnel, etc.
The Supreme Court of Raja Dhruv Dev Chand vs. Raja Harmohinder Singh (1968) ruled that the contract law will not apply to a lease, since the pact is governed by the Transfer of Property Act and is a promotion made as opposed to a contract. However, where the force majeure clauses contained in the leave and licensing agreements do not contemplate natural disasters or government instructions such as the current blockade or the pandemic itself, licensees may challenge the suspension of their obligations under section 32 of the ICA, 1872, as an essential element of the referral of this section as (a) description of the event in a force majeure clause; (b) there is the delay of the contractual obligation due to the event. c) Delays in payment are due to the fact that the event is beyond the control of the party invoking the clause and not its inadequacies. (d) The parties are required to ascertain whether the performance of the undertaking is totally impossible or whether there is only a temporary change in circumstances that can be cured by an alternative that could have been provided for in the agreement.