EDWARDS AIR FORCE BASE, Calif. -- By now, many of you have become aware of the health risks associated with the novel coronavirus COVID-19, and the steps on helping prevent your and your loved ones from contracting it. This pandemic has also led governments at all levels to make hard decisions that affect the lives of millions of fellow Americans, from cancelling schools to banning large social gatherings. Plans that you may have previously made such as booking a flight or buying tickets to a theme park are likely now in disarray as everything is getting disrupted. However, there is a silver lining – you, as a United States Active Duty Airman may be entitled to a refund after making vacation plans or buying tickets to an amusement park and other facilities or events!
Most theme-parks, commercial airlines, and other large companies have been very proactive in the wake of the pandemic, putting in place new policies geared towards softening the financial blow to travelers during the Coronavirus outbreak. For example, most airlines will be waiving change and cancel fees to customers for flights purchased between March and April 2020, and some theme parks will automatically extend date-specific tickets through December 2020. Please check your company’s website to see what kind of deals they are offering at this time.
In the event you are dealing with a smaller company that may not offer the same types of accommodations, there are some legal principles that you should consider with regards to breaking your contract. The first thing you should do is scrutinize your contract for a force majeure clause. A contractual force majeure clause is a provision in a contract allows parties to specifically enumerate the events which excuse performance under the contract. While contracts contain a force majeure clause, most of them are reserved for earthquakes, floods and other “acts of God” that do not cover pandemics like COVID-19. Qualifying events would most likely only include the terms “epidemic,” “pandemic,” “quarantine,” “health crisis,” and/or “supply chain disruption.” If your contract includes a force majeure clause with any these terms, you will likely be able to break your contract.
If the force majeure clause in your contract does not cover COVID-19, you may be able to invoke the doctrine of frustration of purpose. This doctrine may be invoked when performance under the contract is not impossible but, due to a significant change of circumstances, a basic assumption in the contract has not materialized. If, for example, you work at Edwards, AFB, and booked a small hotel room a few months ago, for the weekend of March 21, 2020 in LA, with the goal to eat out at fancy restaurants, you may be able to claim frustration of purpose. While you can still spend this weekend in LA, the City’s restaurant closure due to the coronavirus outbreak has effectively frustrated the purpose of your hotel booking. Thus, frustration of purpose may the best argument to get your of your contract in times of pandemic.
Your last resort, if all else fails, may be to invoke the doctrine of impossibility. Every state recognizes some form of the doctrine of impossibility, either in the Common law or by code. Under this doctrine, performance of a contract is excused when an unforeseen change of circumstance renders it impossible. Difficulty in performing under the contract will not be sufficient [See, e.g., U.S. v. Winstar Corp., 518 U.S. 839; Jacksonville, M., P.R. & N. Co. v. Hooper, 160 U.S. 514 (1896)].
The bar for proving impossibility is high and requires that the condition purportedly interfering with performance be entirely unforeseeable. For example, in a seminal California case, a tenant who leased commercial space for an auto parts and tire store was barred from using the doctrine of impossibility after governmental regulations on the sale of new tires triggered by WWII made performance impossible, simply because the contract was entered into when the country was debating entry into the war.
The doctrine of impossibility may apply to contracts entered into by service members due to the recent travel restrictions issued by the DoD. Assuming that the contractual obligations were assumed before December 2019 (when the first cases were reported in mainland China), the foreseeability should not be a bar to this argument as the nature and spread of the epidemic is unprecedented. For contracts that have been negotiated in more recent weeks, the widespread reports of the outbreak will make the foreseeability argument a contested issue.
The coronavirus pandemic is a source of much grief and confusion over how thousands of fellow U.S. Airmen deal with cancellations of virtually all large public events in the country and their inability to travel due to the DoD’s stop movement order. But don’t despair as there are legal doctrines set in place to ensure that your money may be refunded to you over these contracts that you signed into. As millions of fellow Americans prepare to experience this new and uncertain chapter in our national history, rest assured that there are mechanisms being rolled out to protect you and your loved ones health, security, and finances. Aim High – Airpower!
For any questions please contact 1st Lt Margaux Curcuru, 412 TW/JA, at (661) 277-4310