DISCUSSION ASSIGNMENT - UNIT 03 (Extra credit available)

Make sure to post something in response to each element of the assignment.Each response to each part of the question is worth points.Feel free to number or label parts of your response so I can see what you are trying to accomplish.

Each post is required to be related to the topic, be in students' own words, and add something new to the discussion (do not just restate what someone else said previously; also, saying "Great post!" is nice, but would not fulfill the requirements). You must write "in your own words"do not copy word-for-word from the textbook or from other students or other sources. This assignment does require you to summarize or reference outside sources.In those cases, copying is fine, but you MUST provide a citation letting me know that content is not original.

Treat this like a classroom discussionyou should strive to include information that ADDS TO the discussion rather than merely repeats what is already there. This means you should read what has already been posted for a given topic.

I suggest that you draft your posts in a document that you can edit and save to your computer. When you are ready to post your assignment, follow these instructions:

• Click on "Reply" below this
• Copy-and-paste the text of your previously drafted response into the text area.

Before you post anything, read the following article:

https://news.bloomberglaw.com/health-law-and-business/coronavirus-threatens-to-flood-courts-with-contract-disputes(Links to an external site.)

PART 1

Think about this excerpt from a law360 article:

"Your contract is the starting point, but not the ending point," Markowitz said. "There are common law doctrines and statutory doctrines in the uniform commercial code, which may apply if you don't have a force majeure provision or may even supplement a force majeure provision in a contract."

1. List one common law doctrine (1 point) and one UCC doctrine (1 point) that might apply to a breach of contract due to COVID-19 impact when the contract does not have a force majeure provision.
2. For each doctrine you list, provide at least one full sentence explaining how the doctrine might help or hurt a business seeking to defend itself against a breach of contract lawsuit (1 point per explanation = 2 points)
3. For each doctrine you list, provide at least one full sentence explaining how the doctrine might help or hurt a victim attempting to sue for damages from a breach of contract (1 point per explanation = 2 points).

After you have submitted your post in response to #1, comment with at least one full paragraph in response to a post by another student (5 points).

HINT:Here is a proposed format for your discussion post.

Common law doctrine:

UCC doctrine:

Common law doctrine will help/hurt a business seeking to defend itself against a lawsuit because...

Common law doctrine 1 will help/hurt a victim attempting to sue for damages from a breach of contract because...

UCC doctrine will help/hurt a business seeking to defend itself against a lawsuit because...

UCC doctrine will help/hurt a victim attempting to sue for damages from a breach of contract because...

PART 2

Think about this excerpt from the law360 article:

"We just don't have law yet on whether, for example, Covid will qualify as an act of God," said Lisa Richman, a partner at McDermott Will & Emery, who co-chairs the firm's international arbitration and dispute resolution group. "Given the widespread nature it's certainly possible, but again that's not something that's been tested yet so it's just an open question."Courts have interpreted the term to mean an extraordinary act of nature and something truly beyond a party's control, Richman said, adding that some of them refer to weather-related events but there is very little jurisprudence on what qualifies.

Find a news article or report discussing one other situation in all of history where a major disaster of some kind was discussed by the courts as a possible "act of God" in the contractual sense (2 points).Do not use an example that specifically references COVID-19, although references to pandemics or widespread illness is fine.

HINT: For reference, here is an example of a historical case where an epidemic was considered an "act of God."

According to pillsburylaw.com, courts looked extensively at the issue of an "act of God" excusing performance of a contract in the context of the 1918 flu epidemic.For example:

The North Dakota Supreme Courtin Sandry v. Brooklyn School District No. 78 of Williams County held that a school district was excused from paying a driver for his services during the school closure [as a result of the flu epidemic]. The court distinguished... [decisions that required paying teachers during school closures due to the epidemic] on the basis that teachers were usually specially qualified, enjoyed statutory protections, and were coming from "outside the district" and thereby foregoing other opportunities.

Unlike teachers, drivers were locals who were not required to possess specific qualifications, and their performance required little or no preliminary preparation. Thus, the "holding in readiness required of the driver during a period of prolonged suspension involve[d] so little inconvenience on his part that it cannot reasonably be said to be the intention of the contracting parties that he should be paid for such period." [Internal citations omitted.]

Due to these differences, the driver was subject to the "ordinary rule applicable to personal service contracts": if without fault of either party its performance is rendered practically impossible for a period of time, the party thus unable to give or receive performance is not liable for its breach.

You MAY NOT use the example given above.Find another example for your discussion post.You do NOT need to find an example that discusses sickness.Acts of God can include earthquakes, floods, wars, etc.

Post a summary of your example (2 points) and explain two things:

1. Why do you agree/disagree with the finding of the court in the example you cited? (5 points)
2. How can the reasoning in your example be used to decide whether a breach of contract due to COVID-19 constitutes and "act of God" in the contractual sense? (5 points)

After you have submitted your post in response to #2, comment with at least one full paragraph in response to a post by another student (5 points).

EXTRA CREDIT (up to 5 points possible)

Consider the following excerpt from the law360.com article:

To qualify as an event of force majeure, even if the specific event is listed within the parties' provision, most courts require that the event have been unforeseeable at the time of contracting.SeeUnited States v. Brooks-Callaway Co., 318 U.S. 120, 123-24 (1943) (finding unforeseeability required to excuse performance) ("Not every fire or quarantine or strike or freight embargo, [even though listed in the force majeure provision] should be an excuse for delay under the proviso.")

Remember that the first cases of COVID-19 hit the US in February 2020, and there were major shutdowns due to the pandemic across the country by the end of March 2020.In recent months, many areas have reopened to different degrees, and there are increasing opportunities for businesses to operate again.However, many businesses choose to continue to offer limited service or stay closed because there are still concerns about infection.On the other hand, many businesses have been able to find alternate means to provide services, keeping their employees and sales intact.

After considering the excerpt from the article and the facts listed above, do you think that a breach of contract occurring in 2021 can still be called an unforeseeable event related to the COVID-19 pandemic?Why or why not? Give examples.