Contractant behaviour in the pandemic: A real-world survey

Abstract

Entirely predictably the Covid pandemic caused material problems in the contracting world, issues such as delivery, payment, and liability, suddenly achieving an undesired prominence. As an empirical researcher, it struck me that I might test my overarching belief that the only valid interest in contract is the performance interest by asking experienced contract professionals how contractants had behaved in the pandemic. During the pandemic, these professionals encountered disputes, a deeper examination of contract provisions, claims, and debates on internal processes. All of which stabilised over time as pragmatic, performance focussed management took the reins. Respondents reacted professionally to events, working to keep contracts alive and reconfigure relationships using a mixture of the formal and the informal, in governance and in the commercial relationship. If contracts did not quite work, respondents engaged, adjusted and trimmed. The same was true for processes – If they did not quite work ‘work arounds’ were created. The paper considers two plausible commercial scenarios in which current contract law might allow an opportunist player to escape from the pandemic bargains made, and argues that contract law should support deal-makers and deter such opportunism.