Do Government COVID Business Closure Orders Frustrate the Purpose of a Commercial Lease?

In addition to their express terms, leases are governed by so-called common law rules that apply regardless of what the agreement actually says. One of these rules is a normally obscure and arcane doctrine known as “frustration of purpose,” which applies when performing lease duties is possible but pointless due to some unforeseen event or circumstance beyond the party’s control. A close cousin is the doctrine of impossibility, which comes into play when some unforeseen or supervening force renders performance impossible.