Commercial Leases and Frustration of Purpose, Impossibility Defenses: Strategies for Landlords and Tenants

Recording of a 90-minute premium CLE video webinar with Q&A

Conducted on Thursday, April 15, 2021

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will guide landlord and tenant counsel on the defenses that have arisen in breach of lease cases due to failure to pay rent during the COVID-19 pandemic. The panel will address recent cases, including from New York, Texas, California, Massachusetts, and New Jersey to establish how courts have analyzed claims of the frustration of purpose, impossibility, and other common law defenses.


Commercial landlords and tenants should be aware of the evolving case law and existing leases for commercial properties. The pandemic caused many disruptions, including the payment of rent. While many tenants have attempted to use force majeure clauses in their leases as a defense, others have focused on common law defenses to seek relief.

Courts have referred to various common law defenses, typically impossibility of performance, commercial impracticability, and frustration of purpose.

Throughout the country, several cases have been decided regarding the use of these defenses. Counsel for commercial landlords and tenants should be aware of how those claims have been decided to prepare the best case moving forward. The state specifics of what qualifies as an impossibility and when and how a force majeure clause may override the availability of that defense must be noted. Cases of note have been decided in New York, Texas, California, New Jersey, Massachusetts, and other states, providing an overview of the status of the evolving law.

Listen as our expert panel reviews the status of landlord-tenant cases that have utilized the common law doctrines of impossibility and frustration of purpose. The panel will advise on best practices when this defense is asserted and when, in the alternative, the contract language will be the determining factor.



  1. Contract vs. common law defenses in commercial leases
    1. Force majeure
    2. Impossibility
    3. Frustration of purpose
    4. Commercial impracticability
  2. Recent state decisions
    1. New York
    2. California
    3. Texas
    4. New Jersey
    5. Massachusetts
  3. Best practices


The panel will review these and other relevant topics:

  • What are the common law doctrine/defenses used in commercial landlord-tenant cases?
  • How have state courts decided these cases in New York, California, Texas, New Jersey, and Massachusetts?
  • When must a tenant rely on the force majeure clause in a lease?


Bowman, Joshua
Joshua M. Bowman

Sherin and Lodgen

Mr. Bowman brings years of experience counseling local and national real estate owners and developers, institutional...  |  Read More

Weber, Justin
Justin G. Weber

Troutman Pepper

Mr. Weber concentrates his practice in commercial litigation, and has extensive experience litigating a broad range of...  |  Read More

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