How Do I Sign North Dakota Travel Agency Agreement

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administration here in minnesota uh we will be starting our presentation today on contract performance for small businesses in just a moment i would like to remind everybody that we are recording today's session so uh we will be able to provide this to the university of minnesota for future use i would like to introduce emily belkos to do the introduction great thanks mike um so i see that we have a small group today and i see that there are some attorneys on the call which is kind of um interesting and exciting to see welcome thank you so much for being with us here today my name is emily bucholtz i am the executive director of the corporate institute at the university of minnesota law school the biggest chunk of what i do there is to teach and run the business law clinic and i'm also a licensed business attorney i have worked with small businesses for a number of years and it's a practice area near and dear to my heart so i'm really excited that we've been able to partner with the small business administration this summer this is actually um a part of a series of talks the small business administration has put on a number of talks with a number of experts who have come in to present we have done a series um this is the fourth of four so the first was on insurance claims the second on lease issues the third on unemployment benefits and then today's talk on contract performances all through the lens of small businesses the other presentations were recorded just like this one is being recorded they are available on youtube so if you're interested in seeing one of those talks that you um maybe didn't get a chance to join us for you can go on to youtube you can search for umn law or you can go um to the corporate institute webpage i'll go ahead and put that in the chat bar in just a minute you can hyperlink to all of the presentations from that page all right so um you know the beginning of these talks we always have to say that this is general information only it is not the same thing as specific legal advice so to the extent that you are um you know have questions about your particular situation really uh what you'll need to do is get connected with an attorney who can learn more about the nuances and context of whatever's going on for you to give you some specific advice to help you set expectations but today's conversation conversation is going to be really good general information to kind of talk about this area of the law and the lay of the land in this space as mike uh mentioned you can put any questions that you may have in the chat bar i will be moderating the discussion i will go ahead and keep my eyes on that chat bar i may respond to you directly i may pause and ask the panelists to kind of chime in to see if they have anything that they might want to add and we might also save some of the questions until the end so no worries if you have a question go ahead and put it in the chat bar and we'll try to get to all of them before we're done um all right so i'm really excited about the panelists that we have um and actually mike i just got a message from one of the panelists who said he's waiting to be let into the presentation okay i will see what i can try to do but i believe he may be in the wrong presentation because everybody should not have been asked to be in um if you can just have him email me at dawn.jackson at sba.gov i'll be able to provide assistance okay sounds great um so i'm going to introduce the panelists who will be with us shortly he is a wonderful professor at the law school his name is john matheson he is a business and corporate professor professor and practitioner he has won the teaching award at the law school something like five times because law students and alumni alike really enjoy taking his classes and working with him we are delighted to have him here with us today we also have attorney joe shower who is a graduate of the law school and is now a shareholder at frederickson byron joe's practice includes mergers and acquisition work and securities work but he also counsels businesses with kind of a general corporate framework so we're really excited that he's willing to be with us here today as well finally we have the two law students who have prepared this presentation for you and will be giving the presentation to you they are our corporate institute practice scholars so we have jennifer satterfield who's a third year law student and shane sanford who's also a third year law student jennifer and shane took the business law clinic with me last year and they also took advanced corporate law with professor matheson so we are delighted um that they have been willing to give their time and attention and efforts to this presentation today and uh without further ado i will go ahead and turn things over to jennifer and shane uh thank you emily um whenever the presentation's ready to move we can probably go to the third slide okay so our presentation is going to start off with entering into an agreement we will be going over what constitutes the agreement and what laws might apply then we will review your potential options when a party can't perform under the contract including renegotiation and litigation finally we'll end with some practical tips policy considerations and resources next slide please so we're starting off with contract basics next slide okay so how do you create a contract there are three essential elements to create a valid contract offer acceptance consideration okay so what does that look like say i offer you ten dollars to rake the leaves in my yard and you accept we have the offer from me your acceptance and the ten dollars is the consideration now consideration does not have to only be monetary it can be anything of value exchanged between the parties so maybe instead of the ten dollars i offer to walk your dog in exchange for raking the leaves in my yard that would still be valid consideration it's also important to note that contracts can be oral or written though there are some contracts that must be in writing to be valid under the statute of frauds which i'll which i will address later and i'd also like to point out that informal contracts can still be valid an example of this is what we call napkin contracts two people might hash out a business deal in a restaurant and write it all on a napkin if there's offer acceptance consideration it's still a binding contract next slide please so something important to consider from the get-go is how courtsy are going to interpret your contract one way is by something we call common law common law is law derived from judicial precedent precedent so what the heck does that mean in plain english there are certain principles or rules that courts will apply to interpret contracts or resolve disputes involving contracts and these rules were not created by a legislature but rather have been developed over a long history of cases next slide courts are also guided by statutes and statutes are the actual written law created by legislatures an example would just be the minnesota statutes one particular statute that applies to contracts is something we will refer to as the ucc the ucc only applies to the sale of goods which are defined as mu as movable objects hence there are some differences between the ucc and common law as it applies to contracts which which you will see throughout this presentation um and finally courts will also use common law to interpret statutes i know that's where it gets kind of crazy particularly if a statute is ambiguous so a great example of this is a statute that bans vehicles in parks is a bicycle a vehicle a court will use common law principles to make this determination next slide please [Music] another important rule is something called the four corners or parole evidence rule so it's important to consider what a court will look at to interpret the contract you've created in general the court will only look at the four corners kind of literally of the written contract if you discussed anything before this written contract that isn't captured in the writing a court will not consider it with some exceptions such as fraud or if the written contract is not the entire agreement and it's also important to note this rule does not apply to any subsequent modifications so if you renegotiate the contract this rule does not apply uh next slide please finally i'm going to take you back around to the statute of frauds so under the ucc version of this contracts for goods worth 500 or more must be in writing with the signatures of both parties an oral contract won't cut it now there are some exceptions including contracts for business to business goods specially manufactured goods if a party admits that there's a contract or if payment has already been accepted or the goods were already received for all other types of contracts section 51301 applies so there are several scenarios where a written contract is required under this statute but the one most applicable to a small business is contracts that cannot be performed within one year now this does not mean the contract has to be completed within one year but rather that it's possible it can be completed within a year so for example an oral contract for a basic bathroom renovation it's enforceable because even if the renovation takes two years to actually complete it could reasonably be completed within one year next slide please okay so a party can't perform what are your options the first one i'd like to discuss is renegotiation next slide please so why renegotiate first modifying a contract is a great middle ground between being stuck with current obligations and trying to get out of them completely it also maintains the business relationship with the other party just remember stay cordial and professional to ensure that business that the business relationship doesn't go sour finally litigation is expensive and time consuming the cost of litigation may very well outweigh the cost of just modifying the contract and litigation will likely take up a lot of your just time and energy on the next slide please now you're probably wondering how can i validly renegotiate the contract well there are three possible ways the first way is through something called consideration where each party gives up something an example of this may be a tenant that can't afford rent due to the current circumstances now let's say the landlord normally takes care of plowing the parking lot in the winter the landlord may be willing to reduce the rent in exchange for the tenant taking over the snow plowing duties so they've both kind of given up something here another option is rescission where the parties just completely terminate the contract and start a new one next slide please finally you may be able to actually modify the contract without consideration if there are unanticipated circumstances you can modify the contract so long as it is fair and equitable here the unanticipated circumstance would be covet 19. if you come up with a fair and equitable modification it will likely be valid and upheld also under the ucc so contracts for the sale of goods you can simply renegotiate and modify the contract no consideration is necessary to do so uh next slide please so one thing to watch out for is a no oral modifications clause it's pretty common it's a boilerplate term and it basically requires any subsequent modifications to the contract to be in writing and usually signed by the parties but even if your contract doesn't have this clause it's still important to get any modifications in writing in case of a future dispute a writing leaves a paper trail and and can avoid a he said she said argument down the road next slide please okay so uh any questions emily are we still chugging along sorry thanks um yes i did want to just pause and say welcome to the two panelists who um it took a few minutes to get them on but john and joe are both on the call with us today so welcome to them and um i wanted to just check in uh joe i don't know how much of that first piece of the presentation that you caught but was there anything else that you wanted to add in terms of background information about contracts or renegotiating yeah thanks emily uh glad i could be here sorry about my technical issue getting in um i think that the the point that jennifer brought up that um renegotiating working with the other party is often the most efficient way to to work through these issues and i think we have now we have a very unique circumstance with this pandemic that's creating so many issues for so many business owners um unlike other instances or other events that have happened you know probably the last decade or so this is really universally affecting everyone in some way some significantly worse than others but what we're seeing from a from a practical standpoint is that most parties understand and because they're dealing with it you know even a business that is is able to sell products because they help health care those types of things they're dealing with issues with employees and making sure they can stay safe at work and how can they bring them in how can they get supply how can they sell their products and do it safely and in accordance with all these government orders and and emergency activities that are being implemented and so there's been a willingness generally speaking more than you typically see in on when contract issues come up to for the parties to work together now that's not universal um but if you're willing to try to um depending on which side of your arm if you're willing to try to come to something that makes sense and perhaps you just agree to it for a temporary period of time or you reassess it every quarter or six months or whatever it needs to be parties are making progress that way in in sort of an efficient manner versus you know threats of litigation and those types of things yeah that um thank you for that i think that's good kind of background and context too for how parties are thinking about this in terms of moving forward um okay jennifer why don't you take us through litigation and then we'll pause again okay thank you um so renegotiation didn't work or isn't the option you want to take what comes next well the other option is litigation next slide please so there are three ways we're going to discuss that you can use to legally get out of your duty to perform under the contract so discharging your duty to perform number one is the force measure clause number two is commercial and practicability and number three is frustration of purpose next slide but first there are a few things i want to address it's important to know the statute of limitations that might apply to your case under the ucc so contracts for the sale of goods you must commence an action for a breach of contract within four years and for other contracts you have six years uh next slide please i'd also like to point out there may be several relevant clauses regarding your duty to perform under the contract potential remedies damages etc these clauses are going to be detailed in the accompanying handout and i'm not sure if you've got that ahead of time if there's going to be a link but there's definitely a handout available and my focus today will just be on the force measure clause next slide please okay so what is a force measure clause it's a clause in your contract that can relieve a party of their contractual duties if certain listed circumstances are met now these circumstances may include acts of god epidemic or pandemic regional or national emergency government action or order etc could be a long list it could be a short list they also might contain catch all terms such as or any other like event or any other event beyond reasonable control of the priority that kind of tries to reach beyond just the list but it's important to note that this is derived from the contract itself so it has to be written in the contract to apply if you don't have a forced major clause you don't have a force measure clause next slide please so next i'd like to discuss how minnesota courts interpret this clause courts will look at the language of the force measure clause to determine if performance can be excused now these clauses are narrowly construed which eans that courts will limit them as much as possible so a great example of this is a 2002 minnesota court of appeals case involving the twins so back then the mlb was actually about to drop the twins from their league and the twins had a contract to play in the metro dome well if they're no longer going to be an mlb team they had no reason to play games in the metro dome so they were trying to get out of this contract based on the forced measure clause unfortunately for the twins the court held that they had to continue playing in the metro dome because a contract with the mlb was not one of the listed terms in the force mr measure clause which only referenced strikes an act of god a natural casualty or a court order so being dropped from the mlb wasn't part of this twins were out of luck however the mlb thankfully abandoned their plan to drop the twins so it all worked out in the end next slide please so i'd like to address some other important points there is a causation requirement to utilize the force measure clause so the triggering event like an act of god must be serious enough to interfere materially with the performance if you can still and perform under the contract despite coven 19 then you probably can't use the force measure clause to get out of performing next slide please [Music] so another important point is foreseeability so the trigger the triggering event like an act of god had to be out of your control and it had to be reasonably unforeseeable or if it was foreseeable you have to consider whether it was could have been prevented or its effects mitigated next slide please which leads me to the concept of mitigation so for all contracts there is an implied duty of good faith and fair dealing so if there is a way to reduce any damages caused by a triggering event like covet 19 you have a duty to do so you can't just ignore a problem if you have a way to fix it or reduce any prop further problems caused on the line by it uh next slide please okay onto house courts interpret some of these common triggering events obviously epidemic or pandemic is likely to apply in the case of covid19 so if that's the language in the force major clause you might be doing pretty good next slide please acts of god is another super super common term unfortunately no minnesota court or really many other courts in other states for that matter have interpreted this term under a force measure clause so in other instances like insurance an act of god is typically limited to natural disasters like earthquakes or hurricanes or floods so while it's probably still worth arguing covid19 was an act of god there really is no way to predict how courts are going to interpret the term in this context next slide please another triggering event you might see is a national or regional emergency so as you know president trump declared coven 19 a national emergency as well as governor waltz and as far as i've checked those declarations are still good and the key for using this as a triggering event will be causation so did the emergency of kova 19 cause your business to be unable to perform next slide please [Music] and the last triggering event i like to i'd like to cover is the government action or order so again we are faced with that pesky causation requirement so did the action or order due to covet 19 prevent you perform performing next slide please so how does the government action or order apply to covet 19 an example of this would probably be a government order for non-essential businesses to shut down if your business wasn't allowed to operate it may have prevented you from fulfilling your duties under a contract next slide please finally some force measure tips it is critical that you pay attention to any possible notice provisions usually they'll be at the end of the clause and they'll say something like you must notify the other party within say 60 days that you're going to use the force measure clause if you don't notify them in time you may have forfeited your ability to rely on this clause number two you should also make sure you're taking any reasonable steps to mitigate aka reduce damage it is your duty to do so under the contract and also you should consider updating contractual language in light of covet 19. so this includes when you're renegotiating the contracts at issue or if you have any future contracts you shouldn't ensure a similar event is covered in case this happens again and remember litigation is not the only solution i know joe talked about this but make sure you're talking to the other parties don't be afraid to renegotiate terms the worst the other party can really say is no or you'll end up in litigation so anticipate that there may still be a dispute forced major clauses can be ambiguous and contractual interpretation is what we like to call squishy in this area so you may read the contract one way while the other party can just as easily read it the other way and with that i turn it over to shane [Music] and actually i'm going to jump in again and just pause because i know we covered a lot of material um i also want to comment that i uh lost connection so my meeting chat is blank if while i was off the call you uploaded a question into the chat bar um it would be great if you could retype that question for me so i can make sure that we address it um okay so john i think i'll just turn to you and see if there's anything else on your mind or anything else that you want to add to this conversation about force major or anything else that jennifer has covered john is there anything else that you wanted to add yeah thanks emily i'm not sure you can see me but i'm here um no i think i think jennifer and what joanne and earlier added earlier uh pulls us right along i think we're doing a good job here there's nothing i have to add at this point okay fantastic then um shane i'll go ahead and turn it over to you fantastic thank you i've also been having a little bit of connection issues so hopefully um it doesn't happen during the presentation but if it does i'll come back quickly all right so jennifer just discussed the ways in which the duty to perform a contract may be excused due to the language of the contract namely the force measure clause but what happens if you get to the litigation stage and your contract does not have a force measure clause thankfully you are not out of luck minnesota law permits several defenses to non-performance this means that if you are sued by another party because you did not perform your obligations under a contract you may use these legal defenses to avoid paying the other party damages for our purposes the most relevant defenses to non-performance are commercial impracticability and frustration of purpose so first i'll discuss commercial and practicability under the defense of commercial impracticability the duty to perform a contract may be discharged when it becomes overly burdensome extremely difficult or exceedingly expensive it's worth noting two things first the qualifying language overly burdensome extremely difficult or exceedingly expensive it's it doesn't say somewhat burdensome somewhat difficult or somewhat expensive second it's also worth noting that this is not a complete defense so even if covid19 is strongly affecting your business the courts still expect you to perform to the best of your ability so this may mean that you need to perform partially now or completely when the difficult economic conditions subside next slide there are three general requirements to meet the standard for the defense of commercial and practicability first there must be a risk or event that neither party recognized when they signed the contract and this occurs when they signed the contract and second both parties assumed the event would not occur and third when the event occurred it made the performance of the contract overly burdensome extremely difficult or exceedingly expensive next slide under minnesota law the courts assess a commercial and practicability defense by looking at the foreseeability of the event was the event foreseeable by the parties when they signed the contract courts excused performance when the future event was not reasonably foreseeable by the parties when the contract was signed but they do not excuse performance when the future event was reasonably foreseeable by the parties when the contract was signed next slide please to better explain this topic i would like to give two scenarios in both scenarios we have two actors a car manufacturer and a car dealer in the first scenario the manufacturer and the dealer enter into a contract the contract states that the manufacturer will provide 100 cars to the dealer the contract was signed on november 1st 2019 and the delivery date is tomorrow there is an issue due to covet 19 the supply chain of goods is is very uh has been decimated and the manufacturer can't meet the the deadline if the manufacturer is sued by the dealer the manufacturer can argue that the delivery of the cars was made commercially impracticable by kovan 19 and if the manufacturer is able to deliver say 50 cars to the dealer the the court may order such partial performance the court may also allow the manufacturer to delay performance until the supply chain functions normally in this case the contract was signed prior to covid19 and kovin19's effect on the supply chain was not reasonably foreseeable to either party this is a prime example when commercial impracticability is a viable defense to non-performance in the second scenario we have the same two parties a car manufacturer and a car dealer the only difference is when the contract is signed in the second scenario the contract was signed the day after the world health organization declared a global pandemic in this scenario a car manufacturer could reasonably foresee the supply chain issues so this would be a much weaker claim of commercial impracticability next slide please so what does and does not excuse performance under the defense of commercial impracticability first i'll first talk about what does not excuse performance so first if there is an increased cost to perform the contract that that does not excuse performance unless the increase in cost is due to some unforeseen future event and second a rise or collapse in the market does not excuse performance the courts deem both of these events as foreseeable and if the contracting parties want to excuse performance for either of these events then they must do so in the contract next slide now what are the events that excuse performance typically these are extreme events like war a shutdown of the supply chain embargoes for our purposes there is a strong argument that government issued stay-at-home orders and the covid19 pandemic are events which may excuse performance the key to determine whether commercial impracticability is a good defense for your situation is by looking at two things first determine if the event was foreseeable by the contracting parties when they signed the contract and second determine if the the event makes uh performance of the contract overly burdensome extremely difficult or exceedingly expensive next slide and i will actually pause here if you have any questions um all right so i don't see any questions in the chat bar if a folks hat i'll just reiterate if folks have questions go ahead and put them in the chat bar and we'll have some time at the end to get to them um john or joe is there anything else that you'd like to add to what shane just talked about in terms of commercial and practicability yeah i can just i mean just to reiterate a point that he mentioned courts are generally going to want to uphold the contracts as much as possible they take a view which i think is correct that business owners and businesses enter into a whole array of unforeseen risks um or what we'd call you know the the legal distinction between unforeseen foreseen is a little it's a little tricky to ride along that edge right um business owners are taking lots of risks and and so what you'll see when these cases actually go to formal litigation is that uh they're not easy there's not brightline rules um there's usually some in between and the court's gonna do what it can to try to enforce the contract as much as possible john anything to add no i think we're fine that's good great um thanks for that joe shane we'll go ahead and send it back to you great so the second way the duty to perform a contract may be excused is the defense of frustration of purpose when an unforeseen event erodes the principal purpose of a contract the defense of frustration of purpose may discharge the duty to perform there are three general requirements to meet the standard for this defense and first like for commercial and practicability the event must be unforeseen when the parties entered the contract for instance covet 19. second the unforeseen event was not caused by the non-performing party and third the unforeseen event undermined the principal purpose of the contract what is a principal purpose it's basically the primary reason for entering a contract and both parties understand that without this primary reason the contract would make little sense next slide please under minnesota the the test is what i highlighted under the the three requirements but i'll just reiterate them again so first the party's principal purpose in making the contract is frustrated second without the party's fault and third by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made i'd like to give an example that's actually a case um a famous english case that kind of established this rule of frustration or purpose the case is krel v henry it occurred in 1902 in england in 1902 it just been announced that edward vii was going to be coordinated as king of england c.s henry wanted to watch the coronation procession and he contra he contracted with krell to rent krell's apartment you see krell's apartment had a fantastic view to observe the coronation after the two parties agreed to the contract the coronation was called off because edward vii had fallen ill at this time henry still owed krell money for the apartment henry refused to pay and krell sued henry to recover the balance owed the court ruled in favor of henry stating that henry's principal purpose of signing the contract was to view the coronation and therefore when the coronation was called off by no fault of henry henry was excused from paying the remaining money to krell next slide so now that we have discussed or actually do you have any questions okay so now that we have discussed the ways in which you can discharge your duty to perform whether it be the actual contractual terms like a force measure clause or affirmative defenses such as uh frustration of purpose or commercial impractic ability we'd like to leave you with some concluding thoughts we'll talk about some practical tips some policy arguments and resources next slide the first practical tip is to look at the contract if you're ever in a position where you feel like you cannot perform the obligations under the contract then look at the language figure out what you agreed to perform and figure out what the other party agreed to perform also determined was this an oral contract or was it a written contract if the contract was an oral contract is it enforceable next also determine if there's any force major clause and look at the language of the force major clause see if there's any words like acts of god epidemics or pandemics or other language which aligns with current events next slide the second practical tip is to document if you cannot perform a contract or meet deadlines document the reasons why include a timeline of government actions inc for example mandatory stay at home orders and also detail throughout the process why you are not able to perform or why certain things are going to be delayed this helps for both renegotiation and for litigation for renegotiation it helps orient the discussion towards the facts instead of emotions often times the party who the non-breaching party or the party who is performing the contract will often be upset that the other party is not performing their end of the bargain by documenting the rea ons why you you're unable to perform it brings the discussion back towards the facts and the reasons for it instead of the emotions of the situation and for litigation it improves your chances of success and saves time and money oftentimes litigation can take several years and if you have to document it after the fact that might be difficult and in some cases might be impossible it's a lot better to document it as you go through this process next slide please the third practical tip is to communicate with counsel if you get to the position where you are overwhelmed or cannot figure out your next step meet with an attorney at the end of the presentation we will provide several resources if you're at this stage in the process and if you are unable to afford an attorney there is also some other resources with your attorney develop a strategy to address the contractual issues determine if renegotiation or litigation is the best route and the timeline from the practical tip number two will better inform this discussion next slide the fourth practical tip is communication and cooperation i think as joe kind of hinted at this may be the most important practical tip for this situation because we are experiencing unprecedented times and to succeed we need open discussions and problem-solving processes as joe mentioned there has been an increased willingness to work together to reach an amicable solution but remember communication is key leaving the other party of the contract in the dark will worsen the situation and as i mentioned before it's best to use information and facts and not emotion also cooperate try to find joint solutions it's often cheaper and it's forward-looking it both preserves relationships and it increases your reputation also litigation is expensive in few cases reach trial oftentimes the courts will make the two parties try to negotiate during the middle of a trial and it's often better to try to go towards negotiation before ever getting to the litigation stage next slide the last practical tip is other ways to discharge performance if you're at the litigation stage and you do not have a force measure clause in your contract try to figure out if one of if your performance can be discharged using an affirmative defense these include commercial impracticability and frustration of purpose determine if the facts of your situation align with the standards for each of these legal defenses next slide please so shane let's pause there because that's the end of the practical tips and that was a lot of really good kind of practical information um joe i'm going to turn to you first and just see if there's anything else you want to add to sort of the stage you've already set in terms of like practical considerations or practice tips thanks thanks john one thing i would add is as you look at your contracts do not hone in on one particular provision for example if you see force major or some of the language like that you need to look at the contract more broadly because there's if you use that particular clause say for example you're unable to perform and there's a provision that allows you to delay performance for a certain period of time there might also be a termination provision that the other party can exercise somewhere else so you know implementing that doesn't necessarily make the other side give up their rights some contracts have a have a clause that says you know if you give notice 90 days prior written notice you can terminate the contract well if if one party argues forced major the other party might just say well here's your 90 days notice i don't i don't want to delay it and do it later and pay you later let's just let's just terminate it so look at the the contract you know the holistic contract to see to understand the rights of the parties and refresh yourself on what what you negotiated if you have something in writing that's kind of one just practical tip not to forget that there's other rights that the other party might be able to exercise the other thing i just want to mention is as we go forward it'll be interesting interesting to see when we when we think about tests like what was foreseeable you see that in a lot of legal doctrines what was reasonably foreseeable well i can't think of a time even with avian bird flu and those types of things where we've had these governmental orders shutting down virtually you know entire nations um entire states and you know outside of essential workers and such well now we've had that now so as you're entering into new contracts and thinking about the next step um you have to i don't want to forget about that aspect and and think about what if this something similar were to happen two years from now or three years from now so even if we pull out of this now we're going to have recent history of these types of things happening and and how this affects your business or could affect your business is something we probably want to pay attention to that's really good um that's really good helpful information i think looking at it holistically is always good advice and also that this uh some of these standards are shifting and changing in real time so thanks for that joe john was there anything else that you're thinking about in terms of practical tips no i think the practical tip number four that uh shane focused on is is so important usually the other side of these contracts is having difficulties as well and if you come at the situation from uh one of being how can we work this out as opposed to you know i have a problem and you have to let me out uh usually there'll be uh at least an initial sensitive ear on the other side to because the other side is having its own problems on various levels so trying to work it out is usually the best step may avoid using a lawyer at all but if you need a lawyer uh to help you know sort out the circumstances we'll give you some resources but uh typically uh you know throwing down the gauntlet or saying you know i just can't perform you know you're just gonna have to sue me it doesn't end up in a good place agreed um joe and john while you're well you still have your cameras on we do have a question um from an attendee and i'll just read it for you here it says um can a party rely on the defenses of commercial impracticability or frustration of purpose only when there's no forced major clause or can a party rely on force major and also on uh commercial impracticability or frustration or purpose one of you want to address that well usually a court usually the doctrines of impact building frustration of purpose are applied when there's no force mature clause that doesn't mean that they're totally exclusive of each other but uh oftentimes the court will say if you if you've developed a force mature clause uh that you you know you intended to cover the situations that would relieve you from liability or partially from liability and may say if something else came up um that you didn't intend for that to be covered um but it deal it's not completely clear but that's just my general understanding of it yep that makes sense uh joe anything else you wanted to add no i agree with that i mean what you'll see if you if you in fact you can google a lot of these these words or cases and even if you're trying to come up with ideas for how to resolve some of these situations um but you know what you'll see though is a lot of times uh folks that are trying to invoke these defenses will if they have a forced major clause we'll say we have this we think it applies even if if it doesn't apply these might apply now whether the court buys that that's a different argument as john said that you know they might look and say you know the the the parties negotiated this type of provision and that was their intent and if we look in the fourth four corners of it we believe that to be addressed or not addressed but it's still tried and it's still worth you know looking here considering it um and it almost always does now what i've seen in a lot of cases that i've read on this particular topic is they lose their arguments on forced major and then they end up losing the other ones as well so oftentimes for similar reasons like this was a business risk you know that you could have foreseen um just because it costs you more to deliver doesn't you know it doesn't change doesn't it wouldn't won't let you implement forced major it won't let you implement impactability you know that's just you know that's the way it is so a lot of times the fact patterns negate any of these provisions from applying yeah that's a good point it's also one of the reasons why as transactional attorneys we work really hard to keep our clients out of litigation in the first place because there's just a lot of uncertainty when they're when it's so fact intensive and so fact heavy um and it's dependent on every judges or you know whoever whomever is making the decision um their interpretation of what happened and why it can be kind of hard to predict the outcome all right well we we will have a little bit of time for questions so if anybody else in the audience has some please feel free to type them up in the chat bar um but shane i'll turn it back to you to talk about policy considerations perfect thank you so the last thing i'd like to cover before we go get to the resources is policy consideration so these are broad topics that parties should consider in light of covet 19 and its effect on contract enforcement the first policy consideration is economic slowdown if everyone stops performing their contracts due to covet 19 then it will lead to a slowdown of the economy this may have greater long-term effects on a business than the struggle of performing at this time the second policy consideration is the encouragement of escaping risks versus insuring risks at its heart contracts set the obligations of each party and they allocate certain risks of the bargain if courts allow parties to discharge their duty to perform by way of a force major clause or affirmative defense then it decreases the incentive for parties to insure against risk and last creating legal loopholes if the courts start to broadly interpret force major clauses or the affirmative defenses then it could hurt the value of contracts also various courts will have different interpretation of these issues if one court states that a pandemic is an act of god under a force measure clause and another court determines that a pandemic is not an act of god this may open the door for litigants to do something called forum shopping forum shopping is where litigants sue in a particular state to increase their chance of a favorable court judgment next slide so lastly we would like to provide you with some resources for small businesses next slide all of these resources will be provided in the handout and if you would like to learn more information about them or if you need to use them as a resource so the first one is legal course legal corps is a non-profit organization that provides free legal exist free legal assistance in non-litigation matters to low-income individuals or owners of small businesses and they provide brief advice sessions and they offer full representation assistance next slide i will now turn it over to joe to discuss resources frederickson and byron offer thanks shane um obviously i'm a resource if you want to call or reach out via email to discuss your particular situation obviously feel free to do that i can tell you pretty quickly whether or not it's you know it's something that um you might be able to get pro bono assistance on or something that you know the firm would handle for you um or give you just you know at least direction on your matter um the other thing i wanted to mention is that we have a legal clinic going that uh is designed to help businesses that are impacted by the riots so a lot of businesses locally here have had damage or other issues as a result of the riots and we have a clinic where you get at least a free consultation and some direction and there's a few ways listed in here on how to get a hold of someone in that of course you can always call me as well and i can get you pointed in the right direction and then on the next slide if you want to click through we've also put together a list of just uh local community community organizations that help various types of businesses what we see from a law firm perspective is a lot of these types of you know ndc neighborhood development center for example will give us a lot of leads on you know hey this person needs help with this type of situation and and and there's various qualifications in terms of whether you can get pro bono or volunteer assistance sometimes it's income based sometimes it's um you know ownership what does the ownership group of the company look like those types of things but these organizations provide a lot of resources to businesses and can get you helped up with legal assistance and then they also um have a lot of other resources like access to capital whether it's helping get low interest rate loans or those types of things so i wanted to to point that out in case you're not aware and and some of these may apply to your businesses thanks joe and i'm smiling to myself that somehow in this slide deck we um forgot to mention i forgot to mention the university of minnesota law school also has a business law clinic so we have um two options sort of similar to how legal corps is run one is a brief advice um virtual meeting we're doing these days it used to be in person and hopefully will be again so those are you know 30 minute or so consultations to just talk generally about what sort of legal issues are going on and get you kind of connected with legal resources we also run a full representation clinic um in the fall and in the spring semesters where law students actually develop a scope of work and then assist the small business client with that scope of work over the course of the semester i have just typed up my email address in the chat bar so if you're interested in more information on either of those programs you can email me directly and we can have that conversation all right so we are almost at an hour but we still have some time left i just want to make sure we do a final call for any additional questions from those of you in the audience if you do have a question go ahead and just type it up in the chat bar i'm just going to give it one more minute to see if anyone's typing all right very good it sounds like we have covered all the material and answered all the questions that have occurred to folks so far so uh mike i'm going to go ahead and turn it back to you thank you emily and thank you to all the presenters and panels for this great information again we'd like to let everybody know that there are resources out there for small business owners via score and the small business development center so please reach out to those if you need them if you have general questions concerning any of our programs you can reach us at minneapolis.mn at spa.gov and again thank you for everybody for attending and have a great day