COVID-19: A primer for your practice
Vol. 77, No. 4 / July - Aug. 2021
Janis L. Prewitt & Katlin Cundiff
Janis L. Prewitt, J.D., is a professor of management at Drury University, teaching business law, employment law, and negotiation classes. Katlin Cundiff, Ph.D., is an assistant professor of management at Drury University, teaching management, leadership, human resource management, and international business classes.
In March 2020, the World Health Organization (WHO) declared the COVID-19 outbreak a pandemic. Since then, employers have faced endless challenges due to the COVID-19 virus being in the workplace, and businesses have faced contractual obligations that are untenable. The local, national, and international effects of this pandemic have been devastating. This article explores the potential long-lasting effects of the virus on policies, particularly in the employment and contractual environment.
The world has not experienced a pandemic of this magnitude since 1918 with the great influenza, also known as the Spanish flu.2 As of July 12, 2021, there have been more than 33 million confirmed COVID-19 cases and more than 607,000 deaths in the U.S. alone.3 The global pandemic has disrupted people’s lives, pushed the health care system to its capacity, and created a global economic crisis with unprecedented high unemployment, disruption in supply chain, and financial shock. At the individual level, populations of shutdown-affected employees were turned overnight into (a) “work from home” employees, (b) “essential” workers (e.g., emergency room medical personnel and supermarket staff), or (c) furloughed or laid-off employees.4 In April 2020, Nevada had the highest unemployment rate (28.2%), followed by Michigan (22.7%), and Hawaii (22.3%). Missouri’s unemployment rate in April 2020 was 9.7%, compared to 3.5% three months prior.5
At the organizational level, shutdowns not only affected industries fundamentally, but also provided several workforce challenges. The uncertainties over the labor force issues have had lawyers and their clients facing emergency issues of closing workplaces and canceling contracts due to the outbreak.
While the vaccinations are currently underway, the recovery to pre-pandemic levels continues. At the same time, organizations are in need to readjust their practices to meet COVID-19 restrictions.
The Occupational Safety and Health Administration (OSHA) issued industry-specific guidance containing recommendations, as well as descriptions of mandatory safety and health standards.6 The Equal Employment Opportunity Commission (EEOC) quickly issued guidelines to assist employers to navigate virus symptoms and comply with the Americans with Disabilities Act (ADA).7 In recognizing the difficult task of balancing suggestions of the Centers for Disease Control and Prevention (CDC) and employment statutes, the EEOC guidelines provide, in pertinent part:
- The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries); Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy); the Age Discrimination in Employment Act; and the Genetic Information Nondiscrimination Act. Note: other federal laws, as well as state or local laws, may provide employees with additional protections.
- Title I of the ADA applies to private employers with 15 or more employees. It also applies to state and local government employers, employment agencies, and labor unions. All nondiscrimination standards under Title I of the ADA also apply to federal agencies under § 501 of the Rehabilitation Act.
- Title III of the ADA applies to places of public accommodation regardless of the number of employees. The regulations interpreting the provisions give “broad coverage” for any commercial facility, which specifically references (in pertinent part) “… office of accountant or lawyer.” So, we obviously need to recognize that these guidelines not only apply to employees (if 15 or more under Title I of the ADA), but also if a law firm invites clients onto its premises as a place of public accommodation.8
- The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19 . Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.9
Employers and their counsel learned much about combining the advice from the CDC and the EEOC for compliance with federal laws as they existed prior to COVID-19, while also ensuring safety of the employees and continuing business operations. The numerous issues that have surfaced in the workplace prompted the EEOC to use guidelines from the CDC, which helped to answer some of these questions as summarized below. Of course, these are “guidelines” and have no legal precedent, but they can assist lawyers, professors, and clients in attempting to resolve questions. However, the combinations of issues that involve employment statutes and CDC guidelines, as well as the myriad of contractual relationships, far exceed the scope of this article.
Disability-Related Inquiries and Medical Exams
The ADA has restrictions on when and how much medical information an employer may obtain from any applicant or employee. Prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category. Once an employee begins work, any disability-related inquiries or medical exams must be job related and consistent with business necessity.10 During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include many symptoms such as fever, chills, cough, shortness of breath, and sore throat. Employers must maintain all information about employee illness as a confidential medical record (separate from the employment file) in compliance with the ADA.
As public health authorities and doctors learned more about COVID-19, they expanded the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with diseases. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste, as well as gastrointestinal problems.
Employers were faced with making health care decisions; most employers did not want to engage in such decisions before the COVID-19 pandemic. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
Medical testing by employers under the ADA requires the test of employees be “job related and consistent with business necessity.”11 Applying this standard to the circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Employers need to make sure tests are accurate and reliable. For example, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities acknowledged community spread of COVID-19 and issued precautions, employers could measure employees’ body temperatures. An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as the EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with others, the employer would generally not be permitted to ask the health-related questions discussed above.
The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members.12 GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the virus.
Since we have never suffered a pandemic of this magnitude since the ADA became effective in 1992, some employees might feel unaware, and therefore uneasy, about answering even legal health inquiries. To gain the cooperation of an employee, an employer may wish to ask the reasons for the employee’s refusal. The employer may be able to provide information or reassurance that he or she is taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from the CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may distribute personal medical information throughout the workplace. Employers may want to assure employees that the ADA prohibits such broad disclosures.
In general, asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. In addition, prior to the COVID-19 pandemic, often accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components). But the sudden loss of some or all of an employer’s income stream because of a pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time — when considering other expenses — and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).
In one example, some employees who grew accustomed to remote work have asked that it be continued as a reasonable accommodation. In this situation, the period of providing telework because of the COVID-19 pandemic could have served as a trial period that showed whether an employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible and cooperative process going forward if an issue does arise.
Also as part of accommodations, many employers have been creative in solving issues of employee protection during the COVID-19 pandemic. Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to the workplace. Accommodations also may include additional or enhanced protective measures, such as creating a barrier that provides separation or increasing the space between an employee and others. Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position). In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).
Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. An employer and employee should discuss possible ideas; the Job Accommodation Network also may be able to assist in helping identify possible accommodations.13 As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.
Employees should also be mindful of any pandemic-related harassment due to national origin, race, or other protected characteristics under Title VII of the Civil Rights Act. Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic. If the employer has been shut down, a reminder to employees about EEO law might be in order. The same anti-harassment laws apply whether the employee is working from home or the workplace.
A vaccination is not a medical examination. A medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”14 If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.
Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability. If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity” and the resulting paperwork must not be stored in the personnel file but in a medical file separate from the other file.15
By contrast, there are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. First, if an employer has offered a vaccination to employees on a voluntary basis (i.e., employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.16 If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions. Also important to consider is that if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions. The ADA requires employers to keep any employee medical information obtained during the vaccination program confidential as with any medical information.
Some employees may not be willing to comply with a mandatory vaccine policy because of a disability or religious practice or belief. If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would seem lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.
Requiring employees to get the vaccine does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information. Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment; (2) acquire genetic information except in six narrow circumstances; or (3) disclose genetic information except in six narrow circumstances.17
GINA defines “genetic information” to mean: Information about an individual’s genetic tests; information about the genetic tests of a family member; information about the manifestation of disease or disorder in a family member (i.e., family medical history); information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by an individual or a family member of the individual; and genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.18
Certain COVID-19 vaccines use mRNA technology. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup. It also raises questions whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information. The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.”19
At the same time, pre-vaccination medical screening questions are likely to elicit information about disability and may elicit information about genetic information, such as questions regarding the immune systems of family members. It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.
If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA. However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.
GINA does not prohibit an employee’s own health care provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information. If an employer requires employees to provide proof they have received COVID-19 vaccinations from their own health care providers, the employer may want to warn the employees not to provide genetic information as part of the proof. If this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.20
There may be little legal downside to asking employees to sign waivers regarding the risks and precautions required in the workplace, even if they do not ultimately have the desired legal effect. That said, given their doubtful enforceability, employers may also want to consider the message sent to employees (as well as regulators and the public) about the employer’s priorities if such waivers are required.21
Contracts: Force Majeure or Common Law Contractual Excuse COVID-19
While businesses continue to adapt during the COVID-19 pandemic, it is inevitable there will be a ripple effect. This could leave countless business relationships in the lurch. Contracts created these relationships, so the parties to them will be grappling over who should bear the risk of loss because of the pandemic. Suspending or even canceling contracts in response to the COVID-19 pandemic may not be as easy as expected. In fact, such actions may expose companies to significant liability.
Parties to a contract should first determine what law governs the contract. Many contracts contain a choice-of-law clause that requires the application of a particular jurisdiction’s law. These clauses often require that law to govern the interpretation of the contract. Jurisdictions do not all recognize doctrines of commercial frustration or commercial impracticality, so the choice-of-law clause could be determinative of the outcome.
After determining the governing law, all involved parties should review the contract for a force majeure clause. Many contracts have them, and they often supersede any default legal remedy for suspending performance available under the common law. Parties seeking to invoke force majeure or common law doctrines to excuse performance should keep several practical considerations in mind:
- Provide timely notice of the force majeure event and consider doing so even if it is not required.
- Communicate with the counter-party.
- Maintain detailed records related to non-performance, including a timeline of events leading to the inability to perform, copies of relevant government orders and pronouncements, efforts to avoid the force majeure event or identify alternative means for nonperformance, and efforts to negotiate substituted performance.22
Little is known on whether courts will recognize COVID-19 in a pre-existing force majeure clause if “pandemic” or “COVID-19” is not specifically mentioned. However, one Delaware Court of Chancery opinion has recently held that in interpreting the “Material Adverse Effect” clause of a contract, similar to a force majeure provision, the contract allocated general market or industry risk to the buyer and, as such, the court found that the COVID-19 pandemic was a risk assumed by the buyer. The court further found that the seller’s change in business practices due to the pandemic breached the seller’s covenant to conduct business in the ordinary course of business, and as such, the buyer was entitled to terminate the contract.23 If businesses did not put the clauses in before the pandemic, they will probably rethink this practice. Because these are contract clauses, the scope and application of the “force majeure” event depends entirely upon the terms used and the meaning that the parties gave to them. Most jurisdictions require these words to be given their plain, ordinary, and generally accepted meaning unless the contract indicates that the parties intended otherwise.
Force majeure clauses vary. They tend to list particular events that allow a party to suspend performance or even terminate the contract depending on the duration of the event. These clauses often include unspecified events that are “out of the reasonable control” of the contracting parties and that were not “reasonably foreseeable” to them. Other clauses further qualify their listed events with other phrases. Too often, these clauses are tacked onto contracts without tailoring the wording to the particular transaction or considering events that might impair a party’s performance. As a result, whether a virus like COVID-19 qualifies as a force majeure event depends entirely on the contract’s language.
Considerations Going Forward
Parties currently negotiating contracts should also be sure to address the implications of the ongoing pandemic and any in the future. This includes:
- Defining the triggering events to include (or exclude) events such as “disease,” “pandemic,” “epidemic,” “public health crisis,” or “state of emergency.”
- Avoiding overreliance upon “act of God.”
- Considering the effect of doctrines like ejusdem generis.
- Crafting language making it clear what will happen at the end of the force majeure event, including whether the event permits termination versus a temporary suspension of performance.
- Considering whether to address disruptions to supply chains, labor force, and/or access to financing.24
International contracts with force majeure clauses likely will be interpreted as narrowly as interpretations by U.S. courts. The International Chamber of Commerce suggests some force majeure language and considerations, in both long and short forms.25 In international contracts, these may be inserted verbatim in the contract or simply incorporated by reference.
If a negotiated resolution can’t be reached, a party’s continuing obligation to perform under a contract could be excused in light of the pandemic by common law doctrines like commercial frustration and Uniform Commercial Code-based doctrines like commercial impracticability.26 This article focuses on commercial frustration, a doctrine of general application that can apply to a wide variety of contracts. While the Supreme Court of Missouri has not yet adopted this doctrine, intermediate courts of appeal and the 8th Circuit (applying Missouri law) have applied it for years, and there seems little doubt that it is the law of Missouri.27
The doctrine of commercial frustration grew out of the demands of the commercial world to excuse performance in cases of extreme hardship.28 Stated simply, the doctrine of commercial frustration provides as follows: If the occurrence of an event, not foreseen by the parties and not caused by or under the control of either party, destroys or nearly destroys the value of the performance or the object or purpose of the contract, then the parties are excused from further performance.29
As Missouri law seems to favor certainty and predictability in contract interpretation and application, the doctrine should be applied in limited fashion and be reserved for circumstances that “operate to make performance valueless and the allocation of contractual risks capricious or fortuitous.”30
The COVID-19 pandemic was not reasonably under the control of any private party. Thus, the doctrine’s application to commercial frustration claims attributable to the pandemic will turn on what the parties to a contract reasonably foresaw, and what the object and purpose of the contract at issue were. The decided cases in Missouri offer some guidance on both these issues.
In determining whether an event was foreseeable, Missouri courts look at the subject matter, terms of the contract itself, and the circumstances surrounding its formation. Applying this test, Missouri courts have found the following events foreseeable:
- For an organization that receives state funding, the possibility that its funding will be reduced or rescinded.31
- Structural defects in a 100-year-old building.32
- Future action by a tenant to enforce a lease restriction.33
- Crop failures due to weather, infestation, and other causes.34
- A change order limiting the scope of work originally contracted for.35
- A settlement agreement whose purpose was the peaceful settlement of a claim and that purpose remained in tack.36
On the other hand, Missouri courts have determined some events were not foreseeable and thus a hardship on the party against who the contract seeks to be enforced. This includes the bankruptcy of a proposed tenant of a building specifically constructed for the tenant’s use37 and a trial court custody ruling that made it impossible to perform.38
Foreseeability seems to be the issue in determining whether we should have thought a pandemic would sweep our country from January 2020 to the present time, with the accompanying government shutdowns in various jurisdictions. Litigation of these contracts may not be the answer, but rather more efficiently a renegotiation. A review of the cases proves that much of the contract defense matters that rely on frustration of purpose vary widely in the application of the doctrine.39
It is reasonably apparent from the decided cases that diminution of profits and/or performance at a loss will not be enough, in and of themselves, to warrant relief under the doctrine.40
Sales contracts have a similar protection, albeit under Article 2 of the U.C.C.41 A seller’s non-performance is excused if an event renders its performance impracticable, the non-occurrence of the event was a basic assumption of the contract, the seller did not cause the event, and the seller did not agree to a greater obligation that assumes the event could occur. Likewise, Article 79 of the United Nations Convention on Contracts for the International Sale of Goods (UNCISG) provides similar relief for sales contracts in international commerce.
COVID-19 continues to affect employment business practices and contracts, and it will likely do so for years. A century has passed since the world has been impacted by a pandemic like this. The overlap of employment statutes and guidance on industry health and safety has created new practices. Contract interpretation and events possibly creating a defense to the enforcement of those contracts may create new precedent in Missouri. It is likely that disputes will arise as to what circumstances and specific terms in force majeure clauses will allow parties to suspend or even terminate their obligations because of COVID-19 without penalty. If force majeure clauses are not applicable, companies will debate whether the general law, like the doctrine of commercial frustration of purpose, excuses their non-performance because of this virus or the government’s reaction to it. Unfortunately, companies are now aware of the economic disruptions that a virus like COVID-19 can create and should analyze and negotiate the wording of force majeure clauses to allocate such risk.
1 Janis L. Prewitt, J.D., is a professor of management at Drury University, teaching business law, employment law, and negotiation classes. Katlin Cundiff, Ph.D., is an assistant professor of management at Drury University, teaching management, leadership, human resource management, and international business classes.
2 1918 Pandemic (H1N1 virus), Centers for Disease Control and Prevention, National Center for Immunization and Respiratory Diseases (NCIRD), https://www.cdc.gov/flu/pandemic-resources/1918-pandemic-h1n1.html. (last visited July 12, 2021).
4 Kniffin, Kevin M. Kniffin Et Al.,COVID-19 and the Workplace: Implications, Issues, and Insights for Future Research and Action, 76 (1), Am. Psychologist 63 (2021).
6 Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, United States Department of Labor, Occupational Safety and Health Administration, https://www.osha.gov/coronavirus/safework (last visited July 12, 2021).
7 What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws, U.S Equal Employment Opportunity Commission, U.S. Equal Employment Opportunity Commission, www.eeoc.gov (Updated Dec. 16, 2020.)
8 28 C.F.R § 36.104.
10 Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101, et. seq.
11 29 C.F.R. § 1630.14.
12 42 U.S.C. § 2000, chapter 21F (2008).
14 29 C.F.R. § 1630.
15 42 U.S.C. § 1211(d), 29 C.F.R. § 1630.13, § 1630.14. See also EEOC Informal Discussion Letter, EEOC (May 31, 2011), https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-226.
16 42 U.S.C. § 12112(d)(4)(B); 29 C.F.R. § 1630.14(d).
17 42 U.S.C. § 2000.
18 29 C.F.R. § 1635.3(c).
19 See Understanding mRNA COVID-19 Vaccines, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html (last updated March 4, 2021) for a detailed discussion about how mRNA vaccines work.
20 See 29 CFR § 1635.8(b)(1)(i) for model language that can be used for this warning.
22 David Shargel, Matthew Nielsen & W. Stephen Benesh, Revisiting Force Majeure and other Contractual Considerations Amid COVID-19, 10 National L.Rev.. (Nov. 6, 2020).
23 AB Stable VIII LLC v. MAPS Hotels and Resorts One LLC, 2020 WL 7024929 (Del. Ch. Nov. 30, 2020).
25 Daniel Sharma, Coronavirus: The Second Wave and Force Majeure, DLA Piper (Dec. 9, 2020), https://www.dlapiper.com/en/germany/insights/publications/2020/12/covid-19-the-second-wave-and-force-majeure/. See also, International Chamber of Commerce, June 2020 ICC Force Majeure and Hardship Clauses Introductory Note and Commentary (2020).
26 U.C.C. § 2-615.
27 Bancorp South v. Hazelwood Logistics, 706 F. 3rd 888, 898 (8th Cir. 2013) stating, “We assume for the sake of discussion the Supreme Court of Missouri would recognize the commercial frustration doctrine as expounded by Howard” citing Ellis Gray Mill Co. v. Sheppard, 222 S.W. 2d 742, 748 (Mo. 1949) stating that the court had not recognized the doctrine as of 1949.
28 Howard v. Nicholson, 556 S.W. 2d 477, 481-82 (Mo. App. E.D. 1977).
31 Adbar, L.C. v. New Beginnings C-Star, 103 S.W.3d 799, 802 (Mo. App. E.D. 2003).
33 Shop ‘N Save Warehouse Foods, Inc. v. Soffer, 918 S.W.2d 851, 863 (Mo. App. E.D. 1996).
34 Jenson v. Haynes, 633 S.W.2d 154, 157 (Mo. App. W.D. 1982).
35 Werner v. Ashcraft Bloomquist, Inc., 10 S.W.3d 575, 576-77 (Mo. App. E.D. 2000).
36 Liquidation of Professional Medical Insurance Co. v. Lakin, 88 S.W. 3d 471, 479-81 (Mo. App. E.D. 2002).
37 Nicholson, 556 S.W.2d at 482-83.
38 Dutton v. Dutton, 668 S.W. 2d 585 (Mo. App. E. D. 1984).
39 Kassebaum v. Kassebaum, 42 S.W.3d 685 (Mo. App. E.D. 2001) stating, “Thus, neither the value of the performance nor the object or purpose of the Contract has been destroyed or nearly destroyed, and certainly the family farm has not been destroyed.”
40 BancorpSouth Bank v. Hazelwood Logistics Ctr., LLC, 706 F.3d 888, 896-97 (8th Cir. 2013).
41 U.C.C. § 2-615.