I get it. I really do. Justice Viramontes does an excellent job going through the contract and explaining how the force majeure clause gets applied to a concert festival that was cancelled during COVID. It's a persuasive analysis, and I can't really fault any of the doctrinal things he says.
So, yep, under American contract law, the defendant is entitled to summary judgment. The artist gets to deep the deposit. That's legally right under existing doctrine.
But imagine that you're just reasoning from first principles. Or perhaps creating your own country (or justice system). What's the just result -- again, I'm asking about justice -- in this hypothetical:
Organizer wants to put on a music festival. It's willing to pay Lizzo $5 million (!) to show up and sing. Lizzo wants to make sure the money's coming, so asks that it be deposited with her agent, and Organizer agrees.
Four months later, COVID hits, and Los Angeles prohibits public gatherings, including (obviously) the planned festival. So no concert, and (obviously) no singing or gate receipts.
Should Lizzo get to keep the $5 million?
I think not. Someone's going to be stiffed, obviously; either Lizzo or the Organizer. But, in truth, Lizzo has lost nothing, whereas the Organizer's lost tons. Lizzo loses out on her $5 million payday, but that's because of COVID. Sorry about that, but at least she's not out of pocket. Nor, in truth, has she really lost any opportunities either, because, yeah, she (at least hypothetically) could have sung at a different concert if she hadn't committed to the festival, but that one would have been cancelled too.
Whereas Organizer is definitely out real money. It presumably had to pay for tons of stuff in advance. To stiff it for another $5 million seems entirely unwarranted. Particularly when it's otherwise going to someone who only lost an "opportunity" for an absurdly high payday.
The Court of Appeal nonetheless lets Lizzo keep the money. On the theory that parties get to allocate the risk of loss however they want, and here, the best interpretation of a far-from-entirely-clear force majeure clause is that Lizzo gets to keep the thing.
Sure enough.
But not entirely just, either.
