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COVID-19: Consumer Contracts Checklist

This checklist looks at the main points to consider in connection with consumer contracts in light of the issues posed by COVID-19. 

If you would like further explanation of any points in this checklistor advice on your particular case, please consider our COVID-19 and Consumer Contracts Article, or contact Claire Boucher.


 1. 
Establish the terms of your contract. 

  • Consider the contract formation point. 
  • Consider whether any terms and conditions have been successfully incorporated. 

 
2. Consider any cancellation and/or termination clauses in your contract. 

  • What are the cancellation/termination rights of each party? 
  • Are there any terms which provide for what will happen in the event of a cancellation or termination? 
  • Consider whether a party has sought to cancel or terminate without any contractual right to do so. 


3. Is there a “force majeure” clause?

  • Consider the wording of the clause to establish whether COVID-19 is likely to amount to a force majeure event and seek legal advice if there is any uncertainty. 
  • Does the clause provide for the consequence of a force majeure event, and where does this leave you? Are you still able to fulfil your contractual obligations? 


4. Are there any other relevant contractual terms.
 

  • Consider if there are any terms that deal with any change in the law, or regulation.  
  • Consider any terms seeking to exclude liability and whether these are “fair” for the purpose of satisfying consumer legislation.

5. Consider any implications of statute or common law. 

  • Could any of the terms upon which either party seeks to rely be deemed to be unfair and therefore unenforceable? 
  • Has the contract been frustrated? 

 
6. What is the insurance position? 

  • Establish whether you are insured for any losses sustained, or that will be sustained. 
  • Check your insurer notification requirements. 

 
7. Seek legal advice. 

  • If you have any doubt about your position under a contract in light of issues arising from COVID-19, seek legal advice. 

 

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