Force majeure is defined as the impossibility to perform contractual duties due to an event not attributable to either party. Most contracts have provisions that further explain what is considered as force majeure for that contractual relationship, as well as what the consequences of such inability to perform contractual duties are. Having a state of emergency due to the COVID-19 does not necessarily mean that one could invoke force majeure. It will depend on the situation. On top of that, lease agreements usually lack such a boilerplate clause, which means that the parties should look for the answers within the governing law of the contract.
Force majeure means that there is an absolute inability for lessee or lessor to perform their contractual obligations.
For example, the obligation of lessor could be to handover the leased commercial premises in a building to a lessee. Before the handover date stipulated in the lease contract the state ordered that the building in which the leased space is located must be closed due to the safety measures. If that building is closed by the Government order, that constitutes the impossibility for the lessor to handover the leased space and thus fulfills his contractual obligation. However, these situations are not so common.
On the other hand, lessees are usually faced with the fact that they are respecting the above-mentioned Government’s Decree by organizing work from home for their employees. Because of such work organization leased workplace is empty. However, the lessors are still asking lessees to pay the rent. The problem with the legal institute force majeure in described situation lays in the fact that in most cases, buildings are not closed by the mandatory decision of the respective authorities. In other words, the lessee is not absolutely disabled to use the leased workplace, and thus the force majeure would be hard to prove. The situation is different when it comes to shopping malls, because the state prohibited their work. In cases when governmental decision directly causes the inability of one party to perform its contractual obligation, that party could invoke force majeure. It will depend on the situation.