Force Majeure and Contract Frustration Post-COVID-19: Rethinking Commercial Risk Allocation

ABSTRACT The COVID-19 pandemic constituted an unprecedented global disruption that exposed fundamental weaknesses in the legal doctrines governing commercial contracts. This thesis critically examines the adequacy of force majeure and frustration as mechanisms for allocating commercial risk during systemic crises, using the pandemic as a central empirical and doctrinal stress test. Focusing primarily on Ghana and the United Kingdom, and drawing comparative insights from France, Germany, the United States, and international commercial arbitration, the study interrogates whether existing contract law frameworks are fit to manage large-scale, prolonged, and externally imposed disruptions. Adopting a doctrinal, comparative, and policy-oriented methodology, the thesis analyses judicial decisions, statutory provisions, and transnational soft-law instruments to assess how different legal systems responded to pandemic-induced non-performance. It demonstrates that traditional common law approaches—characterised by narrow interpretations of force majeure clauses and the restrictive doctrine of frustration—proved largely ill-suited to the realities of COVID-19. By contrast, civil law systems equipped with codified hardship doctrines and judicial powers of contractual adaptation exhibited greater flexibility and normative coherence. The thesis further reveals that contractual risk allocation is structurally fragile, particularly in mixed and developing legal systems such as Ghana, where institutional capacity constraints, limited access to justice, and underdeveloped statutory frameworks exacerbated commercial vulnerability. It argues that effective crisis governance cannot rely on party autonomy alone, but requires doctrinal recalibration, legislative intervention, judicial capacity building, improved contractual drafting, integration of alternative dispute resolution mechanisms, and greater engagement with international soft law. Ultimately, the thesis advances a normative framework for reimagining contract law as a crisis-responsive system of risk governance, capable of reconciling legal certainty with fairness and economic resilience. It contributes original insights to contract law scholarship, comparative legal studies, and policy reform debates, while offering context-sensitive recommendations for Ghana, the UK, and similarly situated jurisdictions confronting an increasingly uncertain global commercial environment.