While we may be in a "new normal," the "old" rules still apply to your business's relationships governed by contracts. Whether you are looking to hold the other party to its bargain or seeking a way out, the terms of the contract will determine what options are available to you. For example, while the seller of Victoria's Secret anticipated that the prospective buyer might seek to use the pandemic as a grounds to back out of the deal, the buyer nevertheless found a hook in the contract which it sought to use to free itself from the deal. That case both demonstrates not only the need to think broadly and creatively about all the potential "what ifs" to address in a contract, but also the need to examine and understand the terms of your existing contracts to identify the risks and opportunities within them. In the end, it often comes down to one question: What does the contract say?
This series will explore considerations your business should give to the agreements which govern its various relationships, including internal relationships between or among business partners; relationships with your employees; and external relationships with your customers and vendors. Now more than ever, closely examining the agreements which manage your business's various relationships is critical to protecting your interests and making informed decisions about whether to seek to avoid or pursue litigation.