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'Hell or High Water' Clause
Little embellishment is needed to describe the devastation wrought by Superstorm Sandy upon the East Coast, particularly the New York/New Jersey area. Alas, too many residents and businesses alike are still painfully inching toward recovery from this unprecedented natural disaster. And now, as if Sandy did not cause enough damage, it has the temerity to become the basis for a new legal precedent.
The case in question is grounded upon two very fundamental precepts of contract law. The first is that performance under a contract is excused when such performance is rendered impossible. To be sure, courts have consistently set the bar rather high for claiming that defense, by distinguishing impracticality or mere inconvenience, which is not an excuse, from true impossibility, which is more forgiving of a failure to perform.
Yet set in exquisite counterpoise to the foregoing axiom that excuses nonperformance is the equally valid maxim that parties shall be held to the terms of the contract which they bargained for, even when those terms become onerous to perform, presuming the terms are explicit that performance must be rendered no matter the intervening circumstances. In the leasing context, this invokes the accepted concept of “hell or high water” clauses, provisos not unfamiliar to the leasing industry. We addressed this a decade ago (my, how time flies when you're in a recession), see Sabino, “Come 'Hell or High Water,' the Lessee Must Pay,” 23 LJN's Equipment Leasing Newsletter 3 (September 2004), available at http://bit.ly/1dfI2Uk. The fundamentals have remained unchanged. Once a lessee agrees to such a clause within the lease agreement, its performance simply cannot be excused, and it must comply with the lease terms, no matter what.
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