The extraordinary lockdowns and shutdowns to contain COVID-19 have significantly impacted businesses across the globe. Consequently, businesses have begun wondering about the effect of this pandemic on their contractual rights and obligations. Many firms and companies have started finding ways to avoid contractual obligations while some are having difficulty in protecting their rights. Force majeure is one of the contractual rights available to excuse the non-performance of a contractual obligation impacted by this pandemic. Nonetheless, it is not a get-out-of-jail-free card. To dispute the claim of force majeure, a party may raise the defence of waiver of rights. In such circumstances, the doctrine of frustration can be used as an alternative remedy to discharge the performance of obligations amid COVID-19. Since Pakistani courts strictly construe the doctrine of frustration, it shall be regarded as a remedy of last resort.
Given the recent disruption caused by COVID-19 (coronavirus pandemic), global markets have felt a significant economic downfall. The global financial crisis of 2008 was considered to be the worst economic disaster since the 1929 Great Depression. According to the Chief of International Monetary Fund (IMF), the coronavirus pandemic has created an unprecedented economic crisis, worse than the 2008 global financial crisis. Companies across the globe, including in Pakistan, are wondering about the impact of such pandemic and its subsequent aftermath on business contracts as businesses have no control over such events. Countrywide shutdowns and lockdowns are taking effect across the world, including in Pakistan, making both large as well as small and medium-sized enterprises particularly vulnerable to liquidity issues. Most corporations have begun to declare their contractual obligations as excused under the force majeure clause. Therefore, the performance of such obligations may likely be delayed, interrupted, or even cancelled.
On the contrary, many businesses may not be able to excuse their performance because they have either waived their right to excuse performance or have excluded the force majeure from the contract. Such parties may always opt to discharge performance obligations under the doctrine of frustration. The purpose of the law is to provide relief to the disadvantaged party. The devastating impact of the coronavirus pandemic has left a multitude of contracting parties in a lacuna whereby they have to suffer the inescapable consequences of the breach of contract due to events beyond their reasonable control. It is in this backdrop that the courts should step in to interpret force majeure clauses in favour of the party seeking to rely on them.
This article consists of six parts.
- Part I provides a quick roadmap of how Pakistani courts have interpreted the term “force majeure.”
- Part II deals with the first issue whereby businesses can raise a claim to be relieved of their performance obligations under contracts where a “pandemic” is not anticipated as a force majeure event. Addressing this issue requires a deeper analysis by construing the meaning of the terms in a standard force majeure clause, such as the act of God, epidemics, and change of law to excuse performance obligations during the coronavirus pandemic.
- Part III dives into the second issue by examining the obstacles faced by parties where there is a general force majeure clause with no mention of a specific force majeure event.
- Part IV discusses the issue of frustration to cater to the situation where a party cannot excuse its performance under a force majeure clause.
- Part V explains the waiver of rights and identifies contractual rights which may be impacted amid the coronavirus pandemic. It also assesses the criteria provided by Pakistani courts to impliedly waive the rights, and provides situations to be taken into account by contractual parties amid the coronavirus pandemic where it can be argued to waive the contractual rights of a party to avoid contractual liability or dispute the claim of force majeure.
- Finally, Part V concludes that force majeure is a contractual right available to excuse performance during difficult times, but such right can be waived. In any case, in the end, an impacted party has the option to discharge its contractual obligations under the legal doctrine of frustration.
Force Majeure in Pakistan: A Loose Construction?
The term “force majeure” has not been defined in any statute in Pakistan. The Islamabad High Court has defined “force majeure” as the events which are outside the control of the parties, preventing one or both parties from performing their contractual obligations. The court recognized but did not limit the scope of force majeure to three forms of provisions, including the following:
- a provision stipulating unforeseen events like wars, acts of God or certain strikes; in such cases, the party will be excused from performing its contractual duties;
- a provision providing for events like earthquakes, floods, or acts of war, which are beyond the control of the party; the affected party will be absolved from the non-fulfilment of its contractual obligations caused by such events, and
- a contractual provision allocating the risk and making the performance of contract impossible or impracticable as a result of an event that the parties could not have anticipated or controlled.
These three provisions have not limited the scope of “force majeure” because the Islamabad High Court reasoned that the term “force majeure” is a term of “wider import” as the intention is to save the performing party from the consequences of anything over which it has no control. Even though, on one hand, Islamabad High Court was keen to interpret the term “force majeure” broadly, on the other hand, the court held that if there was a change in economic or market circumstances, which would affect the profitability of a contract, such a change should not be constituted as a force majeure event. Therefore, an “unexpected price hike in the world market of aluminium base metal”  was held not to be a force majeure event. Similarly, the Sindh High Court held that the widest meaning that could be given to “force majeure” was to the extent of protecting the contractual party from the consequences of non-performance of a contract due to which it had no control. Thus, it can be rightly argued that Pakistani courts are keen to interpret “force majeure” holistically. The analysis of cases discussed above suggests that the approach of the courts is to interpret a “force majeure” event in favour of the party which would subsequently default in performing its contractual obligations due to unforeseeable and uncontrollable events.
Coronavirus Pandemic: The Specific Force Majeure Events
A standard force majeure clause which specifies force majeure events includes provisions for two types of force majeure events (FMEs):
- natural force majeure events (NFME), and
- political force majeure events (PFME).
The NFMEs, as the name suggests, include acts of God. A force majeure clause mentioning an act of God often includes an “epidemic” or “plague.” On the other hand, PFMEs are sub-divided into two types:
- (a) PFME which occur inside the host country or directly involve the host country, and
- (b) PFME which occur outside the host country and do not directly involve the host country; usually known as a “foreign political event”.
Generally, a PFME includes an act of war, invasion, armed conflict, act of foreign enemy, blockade, embargo, evolution, riot, insurrection, civil commotion, act of terrorism, sabotage, nationwide strikes, works to rule, go-slows, making of laws or any change in laws which materially and adversely prevent the performance of a contract.
The coronavirus pandemic has raised concerns for many corporations about whether a standard force majeure clause specifying FMEs, like an act of God, epidemic or change in law, can be relied upon in excusing performance obligations. In other words, it is prudent to examine whether FMEs, including an act of God, epidemic or change in law, can be interpreted to include the coronavirus pandemic. A specific force majeure clause that refers to epidemics or pandemics will be helpful to a party wanting to excuse its contractual performance as a result of the pandemic. However, it is probable that only a few contracts formed outside of the healthcare industry generally have such specific references. A way to address this issue is by understanding the nature of a force majeure clause to determine whether the words embodying such a clause can be interpreted to include the coronavirus pandemic as an FME. FMEs like acts of God, epidemics and changes in law are highly fact specific and jurisdiction specific. This subsequently raises three essential questions:
- (a) whether the coronavirus pandemic falls within the scope of an “act of God”;
- (b) whether the coronavirus pandemic may fall within the meaning of “epidemic,” if epidemic is specified as an FME in the force majeure clause; and
- (c) whether the recent enactment of Punjab Infectious Diseases (Prevention and Control) Ordinance, 2020 to counter the coronavirus pandemic constitutes a change in law, if provided for in the force majeure clause.
The first issue of whether the coronavirus pandemic falls within the scope of an “act of God” clause can be addressed by resorting to the reasoning of Pakistani courts. Coronavirus can be argued to be an act of God, but such an argument is subject to the interpretation of Pakistani courts regarding the breadth of the term “act of God”. If the “disease” or “epidemic” has not been expressly included in the force majeure clause, a term such as “act of God” or some other catch-all provision will suffice, but it will require careful consideration of the contractual provisions. For example, in the United States, some courts have suggested that that “act of God” may be limited to matters solely caused by forces of nature. However, the majority view in the United States requires the act of God to be unforeseeable. The Supreme Court of Pakistan, however, defined “act of God” as an accident which is caused “due to natural causes directly or exclusively without human intervention and that it could not be prevented by any amount of foresight paid and care reasonably to be expected from him.” In other words, an “act of God” is an accident, which has natural causes and which could not have been prevented by taking any amount of reasonable care. At present, any natural cause can be foreseen but, as the Supreme Court has held, “accident … that …could not be prevented by any amount of foresight paid,” it seems to suggest that it does not matter if the accident was foreseen, what matters most is that such an accident could not have been prevented by any amount of reasonable care. Thus, foreseeability does not seem to be an important ingredient for the Supreme Court of Pakistan while interpreting an “act of God.” The coronavirus pandemic is evidenced to be a “product of natural evolution” because it has arisen through “natural processes.” Therefore, in such a circumstance, it satisfies all ingredients to be an “act of God” as provided by the Supreme Court of Pakistan, and can thus be held to be an FME.
Next, if the “disease” or “epidemic” has been expressly included in the force majeure clause then the question arises as to whether the coronavirus pandemic falls within the scope of an “epidemic.” The Merriam Webster dictionary has defined an epidemic to mean “an outbreak of disease that spreads quickly and affects many individuals at the same time.” Similarly, the World Health Organization (WHO) has defined an “epidemic” to mean “the occurrence in a community or region of cases of an illness, specific health-related behavior, or other health-related events clearly in excess of normal expectancy.” A “pandemic” on the other hand, has also been defined as “an epidemic occurring worldwide, or over a very wide area, crossing international boundaries and usually affecting a large number of people.” Similarly, the definition of “public health emergency” provided by the WHO means, “an occurrence or imminent threat of an illness or health condition caused by … epidemic or pandemic.” The use of the word “or” between epidemic and pandemic stipulates that both epidemic and pandemic are of the same nature and can be used interchangeably. The ordinary distinction between an epidemic and a pandemic is that an “epidemic” is a primary term which has been used to define the severity of the disease at a regional level, whereas a “pandemic” is the type of epidemic used to describe the severity of disease at a global level. This can be illustrated through the case Re Swine Flu Immunization Products Liability Litigation in which the court used the definitions of “epidemic” and “pandemic” provided by Dorland’s Illustrated Medical Dictionary, 24th ed. 1965 to decide a tortious claim. The Dorland’s Illustrated Medical Dictionary, 24th ed. 1965 defined the terms “epidemic” and “pandemic” in the following manner:
“EPIDEMIC — A situation where a disease attacks many people in the same region.”
“PANDEMIC — A widespread epidemic.”
Therefore, it is arguable that “pandemic” is a type of “epidemic” that relates to geographic spread and describes a disease that affects an entire country or the whole world. In other words, a pandemic is an epidemic on a global level. The difference between “epidemic” and “pandemic” for the purposes of a force majeure event would only exist to the extent that the coronavirus pandemic will be an “epidemic” for parties at a local level and the same will be a “pandemic” for parties forming international contracts. If there is a local contract, the performance of which is being affected by the coronavirus pandemic infecting a large number of people locally, the disease shall be considered an “epidemic” and the impacted parties to such a contract can excuse their performance by relying on the term “epidemic”. On the other hand, if there is an international contract which can only be performed through acts performed in different parts of the world, the disease will be considered as “pandemic”. For example, A manufactures a product for B in Pakistan; the manufacturing of the product requires A to import different supplies from different countries, such as the United States and China. Subsequently, if one of these countries is attacked by the coronavirus pandemic, such an outbreak of the disease shall be considered “pandemic” as far as international parties are concerned. Both terms purport the same meaning; thus, it can be concluded that the substance of both these terms is similar in nature. Hence, it will be enough for a party impacted by the coronavirus pandemic to excuse the performance of its obligations under contract if the term “epidemic” is listed as an FME.
The third issue pertains to a change in law during an FME which might influence the performance of a contract. Amidst the coronavirus pandemic, many governments are taking actions and changing their laws. The question that arises is, where the contract fails to provide for pandemics, whether “recent government actions, including state-mandated closures of certain businesses” can provide the means for an impacted party to excuse the performance of its obligations. Changes in law are generally defined to be the risks of government actions that may endanger parties to perform their contractual obligations and include the following:
“the adoption, promulgation, modification, or reinterpretation after the signature date of the concession agreement (CA) by any governmental authority of any laws of the host country; and
the imposition by a governmental authority of any material condition in connection with the issuance, renewal, or modification of any approval after the date of signature of the CA.”
Changes in law generally encompass changes in government policies with respect to laws and regulations, methods to address inflation, currency conversion rates, methods of taxation and methods by which even electricity tariffs are set and approved. These risks are generally provided as PFMEs in the force majeure clause. Government actions can occur at the central, provincial or local levels. The question of utmost importance for businesses in Pakistan is whether the recent enactment of the Punjab Infectious Diseases (Prevention and Control) Ordinance 2020 to counter the coronavirus pandemic constitutes a change of law as it has been enacted to repeal the Punjab Epidemic Diseases Act 1958. It empowers the Government of Punjab to issue orders to prohibit or impose any requirements or restrictions on any person’s right of “entry into or exit from” any premises. In addition, the government also has the power to issue such orders with respect to any “location of person”. However, such orders can be issued for a specific time period and may be issued with respect to any specific area of one specific premises. For example, these orders may include closing all grocery stores at 5 pm and directing marketplaces and shopping malls to remain closed to counter the coronavirus pandemic. The government is also empowered to regulate “any area,” i.e. impose a lockdown in any city. In other words, the Government of Punjab has the power to not only impose lockdowns in any city in the Province of Punjab but also impose restrictions on the premises of any person. Such premises could include offices, shopping malls and even dwellings. In addition, the Government of Punjab has been authorized to issue orders relating to such restrictions, prohibitions and requirements with respect to any persons, goods, vehicles, vessels, or other means of transportation in any area.
Due to a lack of case-law regarding change of law in Pakistan, we can rely on an Indian case, where the counsel for the appellant provided a three-point test for determining a change in law:
- whether there has been a change in law, i.e. an enactment, amendment, modification of a statute, rule or regulation, etc;
- whether the said change in law has been brought about by an Indian Governmental Instrumentality; and
- whether such change in law impacts cost/revenue and fulfils the threshold provided under India’s Power Project Agreement (PPA).
Ordinance 2020 satisfies all three limbs of the test. It is an enactment by the Governor of the Punjab under which a lockdown of the city or any premises can be issued. It can ultimately affect the costs or revenues of the parties impacted by the lockdowns. For example, a news item has stated that two-fifths of the world’s population is under some form of lockdown which has caused the shuttering down of businesses and a slowdown in transportation while trying to contain the virus. The country where the outbreak has originated may escape economic recession but will nonetheless suffer a sharp slowdown. Similarly, according to Economic Times, “…with several states announcing lockdown to curb the spread of COVID-19 pandemic, rating agency ICRA expects around 45 per cent of the rated mall portfolio to be vulnerable.” In view of this, the lockdowns imposed by the Government of Punjab, whether under Section 144 of the Code of Criminal Procedure or under the 2020 Ordinance can be considered as part of a change in law. My view is supported by different authors, one of whom states that, “Recent government actions, including state-mandated closures of certain businesses, may provide a means for a party to have their performance excused.” It can be expounded that there will not be any obstacle for Pakistani courts to conclude that the contracts which have been signed before the coronavirus outbreak and which have financially affected the parties through lockdowns issued by the Government of Punjab under Ordinance 2020 or under Section 144 of the Code of Criminal Procedure, can excuse the parties from performing their contractual obligations under the “change of law” provision in their force majeure clauses.
Coronavirus Pandemic: General Force Majeure Clause
The interpretation of contracts encompassing a force majeure clause with no specific FME during the escalating situation of coronavirus pandemic is crucial for parties which have entered into such contracts. The question that such parties have raised is whether such a clause, where no specific FME has been provided for, is broad enough to excuse the performance of their obligations during the coronavirus outbreak.
One possible way to address this issue is by construing the scope of a force majeure clause within the contract by relying on the interpretation provided by Pakistani courts. The understanding of the term “force majeure” has already been discussed above. The basic interpretation of “force majeure” by Pakistani courts demands the saving of an impacted party from the consequences of unpredictable events. The Islamabad High Court has fittingly held that, “…force majeure presupposes an external cause which has consequences which are inexorable and inevitable to the point of making it objectively impossible for the person concerned to comply with his legal obligations.” The coronavirus pandemic can be construed as an “external cause” and now is the most suitable time and circumstance for the courts to shield the impacted parties from such an external cause which has unavoidable consequences. The impacted party cannot escape the influence of coronavirus outbreak on the execution of its contractual duties, thus making it objectively impossible for such parties to comply with their contractual promises. For instance, a corporation that is unable to perform its contract because of the coronavirus outbreak can have no control over the coronavirus pandemic. Therefore, it would be fair, just and reasonable to relieve such a corporation from its contractual performance by treating the coronavirus pandemic as an FME.
Furthermore, it is instructive to examine the scope and extent of a force majeure event in other jurisdictional laws. The notion of “force majeure” has been embodied in Article 79 of the United Nations Convention on International Sales of Goods (CISG) as a “failure to perform…due to an impediment beyond…control.” Pakistan has not ratified the CISG, however, since CISG has been ratified by many other states, it is of assistance to see if “pandemic” or “epidemic” has been recognized as an FME under Article 79 of the CISG. Lawyers at Linklaters argue that, “It is in principle accepted that Article 79 CISG may apply in case of epidemic diseases.”
In China, on March 5, 2005 during the China International Economic and Trade Arbitration Commission (CIETAC) arbitration proceeding (L-Lysine case), the claimant (buyer) and the respondent (seller) disputed a sale contract. The seller only delivered about 2/3 of the goods and the parties then changed the delivery schedule. Upon non-delivery of goods by the seller, the buyer cancelled the rest of the goods and brought a suit against the seller in arbitration proceedings. The seller’s failure to deliver was allegedly connected to the 2002/2003 Severe Acute Respiratory Syndrome (SARS) epidemic. The arbitral tribunal constituted under the rules of the CIETAC rejected the plea of force majeure under Article 79 of the CISG, opining the following:
“SARS happened two months before parties signing the contract, so SARS was not unexpected. Besides, SARS was under control by June 2003. At the time of the conclusion of the contract, the Seller should have had enough opportunities to consider the influence of SARS in China and it shall not become an impediment as stipulated in Article 79 of the CISG.”
According to the tribunal, SARS constituted a force majeure event, but the fact that the parties had signed the contract after the epidemic, made the event foreseeable and under the control of the parties. As the seller had been aware of the challenges that the epidemic could have posed on the performance of the contract, the tribunal did not let the seller take advantage of its non-performance under the guise of a force majeure event. Therefore, it can be concluded that had the parties entered into the contract before the upsurge of the epidemic, the seller could have successfully raised the defence of SARS as an FME. The logical conclusion inferred from this case can be very similar to the issue pertaining to coronavirus pandemic as well. It can be extrapolated that the contracting parties can excuse the performance of their contracts where the contract has been entered into before the outbreak of coronavirus, making it absolutely unmanageable for the parties to ascertain the outcome of such a pandemic on their contractual duties.
A similar analogy can be drawn from the events that erupted in 2009, when swine flu was declared by the WHO as a “global pandemic”. One author concluded that the pandemic flu would seem to fall within the definition of “force majeure” provided in the FIDIC Contracts (published by the International Federation of Consulting Engineers). In the FIDIC Contracts, force majeure has been defined as “an exceptional event or circumstance: [i] which is beyond a party’s control; [ii] which such party could not reasonably have provided against before entering into the contract; [iii] which, having arisen, such party could not reasonably have avoided or overcome; and [iv] which is not substantially attributable to other party.”  Likewise, the coronavirus pandemic is an exceptional event beyond anyone’s control, whereby an impacted party could not have reasonably foreseen such an event before entering into the contract. It is the event which could not have been avoided or overcome by any party alone. Even governments all over the world have so far not been able to overcome the coronavirus pandemic. The degree of its spread is “beyond containment.” A vaccine has still not been approved and is under progress. The uncertainty caused by the coronavirus pandemic is enough evidence to establish the element of “beyond control” in a force majeure clause.  It should be adequate to conclude that the impacted parties can excuse the performance of their obligations amidst the coronavirus pandemic where the contract contains a general force majeure clause with no specific FME.
Parties whose contractual performance is impacted by this pandemic have also raised the issue of “frustration.” One of the questions, which has concerned the business world is whether parties to a contract with no force majeure clause are qualified to discharge their performance obligations amidst the coronavirus pandemic. The impacted parties who are unable to rely on contractual provisions for non-performance are limited to the common law defence of frustration provided under Section 56 of the Contract Act 1872. The Supreme Court of India has clarified that many contracts expressly provide for performance to be excused if it has been rendered impossible by an unavoidable cause such as a force majeure event, act of God, or the enemy. When a force majeure event is related to an express or implied clause in a contract, it is governed by Section 32, and if the event occurs outside the scope of the contract, it is dealt by a rule of positive law under Section 56 of the Indian Contract Act 1872. In addition, frustration is a doctrine, which is automatic and cannot be waived. The doctrine of frustration is always available as a remedy of last resort.
As a general principle, the performance of an impossible or unlawful contract can be discharged under the doctrine of frustration. Halsbury’s law provides that “the doctrine of frustration is in all cases subject to the important limitation that the frustration circumstances must arise without fault of either party.” The doctrine was established in an English case, Taylor v. Caldwell where it was held that if an “unforeseen event occurs during the performance of a contract which makes it impossible of performance, in the sense that the fundamental basis of the contract goes, it need not be further performed, as insisting upon such performance would be unjust.” However, the doctrine of frustration can only be invoked if the party alleging frustration shows that it is impossible to perform the contract, and the impossibility occurs without the fault of either party to the contract. The fact that the contract becomes more expensive or onerous is not enough to argue impossibility. The Sindh High Court has further studied the requirement of impossibility by holding that, “…the party is required to establish physical impossibility … over which the vendor has no control and which it could not avoid with all due diligence.” The court has clarified that “commercial impossibility” cannot be regarded as a ground to invoke the doctrine of frustration.
Subsequently, the question arises as to whether the parties impacted by the coronavirus pandemic are qualified to frustrate the contract under Pakistani law. This question necessitates the application of the above case-law to current facts. The coronavirus pandemic is an event that has been caused due to natural causes, which implies that the fault cannot fall on either party to the contract in giving rise to such an event. There is no question that impossibility has been created by extensive government lockdowns and shutdowns for several industrial sectors to perform their contractual duties. For example, it is impossible to perform construction contracts amid shutdowns and the imposition of travel bans has made it impossible to perform the contract of freight services. These examples are suitable instances to illustrate the physical impossibility in performing contracts amidst the coronavirus pandemic. Based on the above analysis, courts may favourably hold for frustrating such contracts amidst the pandemic.
Ostensibly, frustration seems very similar to force majeure. However, the consequences of frustration are different from those of force majeure. For example, if a contract is frustrated, parties are completely discharged from their contractual obligations. In other words, the contract will not be excused and will come to an end. The Supreme Court of Pakistan has held that, “…it [frustration] guillotines the contract without the action of either party.” The Contract Act 1872, however, does not permit any party to receive an advantage under the void contract. Thus, when the contract is held to be void, the benefit received under such a contract must be restored to the other party under Section 65 of the Contract Act 1872. In other words, the contract excluding a force majeure clause may be frustrated, but no party will be allowed to gain any advantage from the other party. Therefore, it is advisable that the impacted parties only opt to frustrate the contract as a remedy of last resort. There is always a possibility that courts may not be interested in frustrating a contract because frustration makes the contract void. In a Hong Kong case, when an isolation order had been made by the Hong Kong Department of Health during the 2003 SARS epidemic, a tenant was unable to access premises for ten days. The Hong Kong District Court held that the 10-day period in which the property had been uninhabited due to the 2003 SARS epidemic did not frustrate the two-year term residential tenancy agreement.
The Hong Kong case is distinguishable on two grounds. The tenant alleged frustration on the ground that he was unable to use the premises for ten days because of the isolation order to contain the 2003 SARS epidemic. The court rejected the claim of the tenant because the term was “quite insignificant in term of the overall use of the premises.” Judge Lok held that, “…an event which causes an interruption in the expected use of the premises by the lessee will not frustrate the lease, unless the interruption is expected to last for the unexpired term of the lease, or, at least, for a long period of that unexpired term.” In the view of the court, the SARS outbreak and its knock-on effects were capable of triggering the doctrine of frustration. Therefore, the first counter-argument to such a case could be that the requirement of impossibility had not been satisfied because it was a two-year term tenancy agreement and a mere ten days of non-occupancy could not be held sufficient to satisfy the requirement of frustration. The tenant was able to perform the contract after ten days. Secondly, the court was inclined to protect the impacted party. The tenant in the case was not the impacted party and was trying to benefit from the frustration of agreement. It was the landowner who would have been impacted by the frustration of the agreement. The tenancy agreement was of a two-year term and it would not have been reasonable to conclude in favour of the tenant on the ground that the tenant was unable to use his dwelling for ten days.
Waiver of Rights
According to Black’s Law Dictionary, “waiver” is defined as abandoning, renouncing or surrendering a claim, privilege, or right. In other words, it means the intentional giving up of a right or claim voluntarily. The Sindh High Court has defined a waiver of right as a right which “may either be made expressly, or it may be inferred from the conduct of the party and all other attending circumstances of the case.” The application of waiver has been widely acknowledged in insurance law, labour and employment law, property law, civil procedure, tort law, fiduciary relationships and contract law. Therefore, a discussion on the waiver of rights shaping contractual rights and obligations of parties amidst the coronavirus pandemic is critical. Before getting into detail, it is important to understand that a waiver of right can only be used as a “shield not a sword.” Pakistani courts have recognized waiver as a “kind of estoppel” and have construed it under Article 114 of the Qanun-e-Shahadat Order 1984 which provides for the doctrine of estoppel.
The rights of a contractual party are rights guaranteed through a legally valid contract. These rights may include the right to terminate, right to payment, right to timely performance, right to notify timely and the right to excuse performance under the force majeure clause. These rights can be waived either expressly or impliedly. Therefore, one must take caution when interacting with opposing parties reporting difficulties performing their contractual obligations, in order to ensure that the party does not make any promises or provide assurances that can later be argued to amount to a waiver of their rights. If the coronavirus pandemic has impacted the performance of a party, one must contemplate if it is appropriate to negotiate a waiver. An analysis of the judgments of Pakistani courts discussed in the following paragraphs of this article regarding implied waivers will indicate that the courts have adopted two different approaches to determine the criteria of implied waiver: the minority approach and the majority approach.
The minority approach provided by the Sindh High Court requires that the conduct of the person must evidence an intention to waive his or her rights and that the other person concerned has been induced by such conduct to believe that there has been a waiver. However, the conduct, evidencing such intention, must be clear, unequivocal and decisive, or it should amount to estoppel, to impliedly waive the right. A similar approach has been adopted by the Lahore High Court in Directorate of Industries and Mineral Development v Messrs Masood Auto Stores. In this case, the Lahore High Court supplemented the test with an additional requirement of “reasonableness” by requiring the waiver to be “so unmistakable and clear that the other party should reasonably believe that performance will not be insisted upon.” The minority approach has been construed so narrowly that it is certainly difficult for the courts to construe implied waiver of rights of a party unless the conduct of the party evidencing an intention to waive its rights is so clear, unequivocal and decisive that the other party reasonably believes the conduct has been intended to waive such right.
The majority view, as provided by the Supreme Court of Pakistan to determine whether a party has waived its rights by conduct, has transformed over the years. For example, in Muhammad Saleh v Muhammad Shafi, the Supreme Court held that, “…waiver is generally created upon knowledge of all the facts by both the parties … In cases of waiver, there should be some clear and decisive act or conduct beyond mere silence, as pure silence by a party in regard to a right perfectly known to the other can rarely mislead a man of average intelligence.” The Supreme Court subsequently held that, “…in order to establish “waiver by conduct”, it must be shown that the person entitled to the right had knowledge of the breach thereof, and secondly, that he had acquiesced or failed to act, notwithstanding that knowledge. Therefore, mere failure to object or to take action due to ignorance of the breach of his right cannot be said to give rise to any “waiver by conduct.” On the other hand, in Dr. Muhammad Javaid Shafi v Syed Rashid Arshad, the Supreme Court of Pakistan, while interpreting Article 114 of the Qanun-e-Shahadat Order 1984, held that, “…where a person who is aggrieved of a fact, he has a right, rather a duty to object thereto for the safeguard of his right, and if such a person does not object, he shall be held to have waived his right to object and subsequently shall be estopped from raising such objection at a later stage. Such waiver or estoppel may arise from mere silence or inaction or even inconsistent conduct of a person.”
Taking into account the above judgments of the Supreme Court, it is settled law that to impliedly waive the right of a person, satisfaction of the following three elements is required:
- the person must have a legal right;
- he or she must have knowledge of the fact that he or she is going be aggrieved of his or her right;
- he or she has failed to safeguard his or her right.
Earlier, in Muhammad Saleh v Muhammad Shafi, the scope of “waiver of rights” had been narrowly construed by the Supreme Court. Thus, a “mere failure to object or to take action due to ignorance of the fact” was not enough to conclude that the person had waived her or her right. The Supreme Court, therefore, required that there be a clear and decisive act or conduct beyond mere silence to waive the right. The Supreme Court has broadened the scope of “waiver of right” in Muhammad Javaid Shafi v Syed Rashid Arshad according to which the right of a person may be impliedly waived if the person has failed to safeguard his or her right. Now “mere silence or inaction or even inconsistent object of a person” may result in failure to safeguard the right. Thus, the courts may most likely hold that the person who has failed to safeguard his or her right, even by lack of action, has “waived his right to object and subsequently shall be estopped from raising such objection at a later stage.”
Following the criteria established by the Supreme Court of Pakistan and the High Courts to determine implied waiver, the next question is how an impacted party may use a waiver of right in its defence to escape the liability which may arise out of its non-performance, or in other words, how a non-breaching party may use this principle in its defence to dispute the claim of force majeure.
If an impacted party fails to perform its contractual promise due to the coronavirus pandemic and such party has in a timely manner notified the non-breaching party of the non-performance, then in such a situation the non-breaching party may be required to respond to such notice. Failure to respond gives rise to a question of whether such inaction of the non-breaching party to respond will amount to a waiver of its right, including the right to terminate the contract, the right to demand performance on time, or the right to claim liquidated damages. It is undeniable that the right to termination and the right to demand performance on time are legally enforceable contractual rights. The case of Directorate of Industries and Mineral Development v Messrs Masood Auto Stores supports the above proposition, whereby the time and venue of delivery were essential to the contract. Subsequently, in the said case, the plaintiff requested the defendant to change the date and venue of delivery which had not been declined by the defendant. The court opined that the doctrine of waiver applied to the case and that the defendant had waived performance pertaining to time and venue of delivery incorporated in the clause. The same conclusion could be reached for the application of the test provided by the Supreme Court of Pakistan. The non-breaching party was entitled to the right to terminate the contract or demand performance on time or claim liquidated damages, upon the knowledge of the breach. However, the fact that the non-breaching party had failed to respond to the notice was enough to conclude that such “inaction” was intended to waive its rights regarding performance. As a result of this, an impacted party may avoid its contractual obligations and a non-breaching party may end up waiving its contractual rights.
On the contrary, a non-breaching party may use a waiver of rights to dispute the claim to excuse performance obligations under the force majeure clause. The following three conceivable arguments to dispute the claim of force majeure may be raised by the non-breaching party:
- post-SARS epidemic in 2002/2003, epidemics or diseases became more foreseeable and should have been contemplated in the contract; failure to incorporate them could be considered a waiver of right by parties using epidemics or pandemics as a defence to excuse delay in contractual performance;
- the absence of a force majeure clause in the contract can indicate that a party has waived its right to excuse performance;
- the impacted parties’ failure to give timely notice of force majeure can mean that the impacted party has waived its right to obtain relief for non-performance or delayed performance.
The eligibility of these arguments to succeed as defences against the claim of force majeure is dependent on the application of tests provided by the High Courts and the Supreme Court of Pakistan.
The minority approach is labelled as a test provided by the High Courts which requires a party to evidence an intention through a clear and unmistakable action to waive its right and for the other party to reasonably believe that the act has been intended to waive that right. The first two arguments mentioned above may fail as a defence. Disregarding terms like “epidemics” and “diseases” post-SARS does not evidence a clear and decisive action by the party waiving its right to excuse performance in such circumstances. The inclusion of the force majeure clause in a contract is enough to argue that there has been no clear, unequivocal and decisive action on the part of either party to waive its right. Therefore, a party may excuse its performance in situations like the coronavirus pandemic. Similarly, the second argument may also fail because the absence of an entire force majeure clause does not indicate that the party decisively wants to waive the right to excuse its performance in events which are beyond its control. A mere failure to take action on the part of the party cannot be held to be a clear, decisive or unmistakable action to waive the right. On the other hand, the third argument may succeed on the ground that the impacted party has been provided with a timeline under the contract to provide timely notice of its non-performance to the non-breaching party. Contracts generally stipulate that contractors should issue notices within a certain period of time after they have been made aware of the force majeure event. Thus, the failure to provide a timely notice of such non-performance may result in the reasonable belief that the impacted party can perform the contract amidst the coronavirus pandemic and has consequently waived its right to excuse non-performance under force majeure.
The Supreme Court of Pakistan requires the satisfaction of the following test to determine an implied waiver of rights: the person who knows that he or she has a right, must be aware of the fact that he or she will be aggrieved of his or her right if he or she has failed to safeguard his or her right. Such failure to safeguard a right can be implied from mere silence, inaction, or inconsistent act. Upon the application of the test, all of the following three arguments satisfy the first limb of the test:
- whether the failure of a party to incorporate “epidemics” or “diseases” as FMEs post-SARS can be considered a waiver of the right to excuse performance amidst the coronavirus pandemic;
- whether disregarding a force majeure clause in the contract indicates that the party has waived its right in any event which is beyond its control; and
- whether the impacted party’s failure to provide timely notice of force majeure to the non-breaching amounts to a waiver of its right to obtain relief for non-performance.
The contracting parties should have been aware of their right to excuse their performance obligations for events beyond their control, such as the coronavirus pandemic. The question to be considered for the first argument is whether the parties impacted by the pandemic had knowledge that they would be aggrieved of their right and had still failed to safeguard their right against force majeure. It is debatable whether post 2002/2003 SARS epidemic parties should have been aware of “diseases” or “epidemics.” Thus, the second limb of the test may be satisfied, but the fact that the parties have included a force majeure clause in the contract only shows that parties have failed to safeguard their right. It is not enough to show that there has been inaction, silence, or even an inconsistent act to safeguard the right. The inclusion of force majeure in a contract should be enough to argue that the party has acted to safeguard its interest. Thus, it is very unlikely for the courts to hold that a party has waived its right to excuse its non-performance amidst the coronavirus pandemic. The second argument may successfully be claimed as a defence against the claim of force majeure since it may satisfy all the limbs of the test provided by the Supreme Court of Pakistan. All contractual parties should be mindful to include the clause of force majeure to exercise their right to excuse their performance under force majeure. Therefore, if an impacted party has failed to include the clause of force majeure, the party has simply failed to safeguard its right by “inaction” and hence has waived its right to excuse performance under force majeure amidst the coronavirus pandemic.
Similarly, the third argument may also be successfully upheld. The impacted party under the contract may have the duty to provide timely notice of non-performance to the non-breaching party. For example, the FIDIC Conditions of Contract for EPC/Turnkey Projects (Silver Book) require that notice of force majeure be sent to employers within 14 days, notices of triggering events of claims be made within 28 days and detailed claim reports be submitted to employers within 42 days from the occurrence of the triggering event. Thus, a failure to issue a notice may be treated as a waiver of rights because the court may regard it as “inaction.”
Finally, the impacted parties who have waived their right to excuse non-performance, either by disregarding the force majeure clause or failing to notify the other party of excusing its performance, may still opt to discharge the contract under the doctrine of frustration. Frustration is a legal doctrine, not a right, and has the effect of determining rights and obligations arising under a frustrated contract. Frustration is automatic hence cannot be waived – the waiver of frustration is ineffective. Therefore, as discussed above, the doctrine of frustration may be invoked as a remedy of last resort.
The ongoing coronavirus pandemic has been causing significant disruptions across the globe, including in Pakistan. The implementation of a variety of measures by all governments, including travel bans, nationwide lockdowns and cancellation of large-scale events, is an attempt to contain the spread of the virus. Such unprecedented measures mean that the businesses will need some answers regarding the effect of the pandemic on their contractual rights and obligations. Many impacted parties are exploring ways and means to avoid contractual liability for non-performance. One way to suspend contractual obligations is under a force majeure clause. The availability of the relief of force majeure is contingent on the availability of the clause, an understanding of the clause and the interpretation of terms therein, as provided by the local courts in Pakistan.
For parties who are not eligible to excuse performance via force majeure, either because they have waived their right to excuse performance or have not provided a force majeure clause in the contract, another way to discharge contractual obligations is to rely on the doctrine of frustration.
The concept of waiver of rights can also play an essential role in excusing non-performance or disputing the claim of force majeure amidst the coronavirus pandemic. However, such principle can only be used as a shield. When interacting with the counterparties, a party may waive its contractual rights, such as the right to terminate, right to demand performance, or right to claim liquidated damages, only because it has not provided assurance, or failed to respond to a breach, or failed to provide notice of non-performance. Such “inaction” it may amount to a waiver of its rights.
 Dan Mangan, Berkeley Lovelace Jr., and William Feuer, ‘Coronavirus pandemic economic fallout ‘way worse than the global financial crisis,’ IMF chief says’ CNBC (United States, 3 April 2020) <https://www.cnbc.com/2020/04/03/coronavirus-way-worse-than-the-global-financial-crisis-imf-says.html > accessed 5 April 2020.
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 Recorder Report, ‘Energy contracts: Government seeks to declare force majeure clause’ (Business Recorder, 31 March 2020) < https://www.brecorder.com/2020/03/31/585165/energy-contracts-government-seeks-to-declare-force-majeure-clause/> accessed 6 April 2020.
 Atlas Cables (Pvt.) Limited v Islamabad Electric Supply Company Limited 2016 CLD 1833 (ISL), 
 Ibid, .
 Ibid, .
 Sadat Business Group v Federation of Pakistan 2013 CLD KHC 1451.
 Adam T. Schramek, ‘US: Force Majeure in the age of coronavirus’ (Norton Rose Fulbright, March 2020) <https://www.nortonrosefulbright.com/en/knowledge/publications/dcc14f95/force-majeure-in-the-age-of-coronavirus> accessed 1 April 2020.
 Gordon Prince, ‘Coronavirus and business contracts: What’s the law?’ (Daily Local, 17 March 2020) <https://www.dailylocal.com/opinion/coronavirus-and-business-contracts-what-s-the-law/article_40e8882c-687d-11ea-8db5-73ea8a8392e5.html> accessed 1 April 2020.
 (n 10).
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 McWilliams v Masterson  112 S.W.3d 314, 320.
 United States v Winstar Corp.,  518 US 839, 905–907.
 Government of N.W.F.P. v Daud Shah Contractor 1996 SCMR 1713.
 Scripps Research Institute, ‘COVID-19 coronavirus epidemic has a natural origin’ (ScienceDaily, 17 March 2020) <www.sciencedaily.com/releases/2020/03/200317175442.htm> accessed at 3 April 2020.
 (n 15).
 ‘Definition of epidemic’ (Merriam Webster) <https://www.merriam-webster.com/dictionary/epidemic.
 World Health Organization, ‘Definitions: emergencies’ (Humanitarian Health Action) <https://www.who.int/hac/about/definitions/en/.> accessed 2 April 2020.
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 (n 20).
 Jennie Alvarez v. United States of America  495 F.Supp. 1188.
 Rochester Regional Health, ‘Pandemic vs. Epidemic: What’s the Difference?’ (Rochester Regional Health, 27 March 2020) <https://www.rochesterregional.org/news/2020/03/pandemic-vs-epidemic> accessed at 2 April 2020.
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 The Punjab Infectious Diseases (Prevention and Control) Ordinance 2020 (PK), s8 and s9.
 Ibid, s8 (1) and (2).
 Ali Raza, ‘Lockdown tightened in Lahore: Order for closing shops at 5pm leads to rush of buyers at stores’ The News (Pakistan, 2 April 2020) <https://www.thenews.com.pk/print/638178-lockdown-tightened-in-lahore-order-for-closing-shops-at-5pm-leads-to-rush-of-buyers-at-stores> accessed 5 April 2020.
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 (n 30), s9.
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 (n 33).
 (n 30), s9.
 Sasan Power Limited, Mumbai and another v Central Electricity Regulatory Commission, New Delhi and another 2019 Indlaw APTEL 116.
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 (n 10).
 (n 4), .
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 Energy Watchdog v. Central Energy Regulatory Commission (2017) 14 SCC 80.
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 (n 55).
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 (n 17).
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 Mustafa Kamal v. Daud Khan 2009 SCMR SC 221, .
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 Li Ching Wing v. Xuan Yi Xiong  1 HKLRD 353.
 Ibid, 357.
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 Tamar Frankel, ‘Fiduciary law’ (1983) 71 Cal. L. Rev. 821-22.
 David V. Snyder, ‘The Law of Contract and the Concept of Change: Public and Private Attempts to Regulate Modification, Waiver, and Estoppel’ (1999) Wis. L. Rev. 607, 609, 624-26.
 Major League Baseball v Frank L. Morsani, etc.  790 So.2d 1071.
 The Directorate of Industries and Mineral Development v Messrs Masood Auto Stores PLD 1991 LHC 174, .
 Dr. Muhammad Javaid Shafi v Syed Rashid Arshad 2015 PLD SC 212.
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 (n 75).
 PLD 1991 LHC 174.
 (n 80).
 Muhammad Saleh v Muhammad Shafi 1982 SCMR SC 33, .
 Dr. Muhammad Javaid Shafi v Syed Rashid Arshad 2015 PLD SC 212.
 (n 88)
 (n 90).
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 (n 80).
 (n 90).
 David J. Ball, W. Stephen Benesh, Philip J. Bezanson, Rachel B. Goldman, Matthew G. Nielsen, & David A. Shargel ‘Contractual Performance in The Age Of Coronavirus: Force Majeure, Impossibility and other Considerations’, (The National Law Review, 18 March 2020) <https://www.natlawreview.com/article/contractual-performance-age-coronavirus-force-majeure-impossibility-and-other> accessed at 10 April 2020.
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 (n 80).
 (n 75).
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 (n 90).
 (n 106).
 (n 90).
 Ewan McKendrick, Force Majeure and Frustration of Contract (2nd edition, Routledge, 2014).
 The Siboen and the Sibotre  1 Lloyd’s Rep. 293.
 Morgan v Manser  1 K.B. 184.
 Tim Maloney, Matthew Blower, Joseph Lewin, Bertie Rooke, and Alyce Kelly, ‘Contractual Implications of the COVID-19 Pandemic – Can it Excuse a Business from Performance of Contractual Obligations Under Contracts Governed by English Law?’ (Dorsey & Whitney LLP, 27 March 2020) <https://www.dorsey.com/newsresources/publications/client-alerts/2020/03/contractual-implications-of-the-covid> accessed at 12 April 2020.
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 (n 79).
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