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W W W. M A I N E B I Z . B I Z 17 N OV E M B E R 1 6 , 2 0 2 0 F O C U S L AW B Y K E V I N H A L E Y B Y K E V I N H A L E Y H OW TO A s a small state, Maine has a rela- tively thin canon of legal cases interpreting or applying major princi- pals of the common law of contracts. But here are a few cases that are topical, unique, or new that lawyers should keep in mind when drafting contracts or providing advice to cli- ents regarding existing agreements. Force majeure In the age of COVID, there has been renewed focus on the so-called "force majeure" provisions of agreements. ese clauses permit parties to a contract to escape liability for failing to perform if that failure is the result of an "act of God" or other circum- stance which renders performance impossible or impractical. Like many contract law issues, there is not a lot of caselaw in Maine on force majeure provisions, but there is one case on point from 1857. In Lameman v. Pollard, the court held that a neighborhood outbreak of a contagious disease, cholera, excused performance under a labor contract. e court held that the "plaintiff was under no obligation to imperil his life by remaining at work in the vicinity of a prevailing epidemic so dangerous in its character that a man of ordinary care and prudence, in the exercise of those qualities, would have been justi- fied in leaving by reason of it, nor does it make any difference that the men who remained there at work after the plaintiff left were healthy, and contin- ued to be so." contract drafters today, the critical take-away is to broach the subject of COVID-19 and have the parties agree as to its impact on their rights going forward. Waiver of subrogation Many or even most contracts involv- ing the provision of services, espe- cially in the construction area, contain a provision pursuant to which the contractor agrees to indemnify the customer against claims for injuries suffered by the contractor's employ- ees while on the job site. In Fowler v. Boise Cascade Corp., a 1991 case, applying Maine law, the First Circuit held that those provisions are ineffec- tive, unless the contractor explicitly waives its right to immunity under the state's workers' compensation laws and agrees to be responsible for claims brought against the customer. is seems like a very arcane point. But the impact of it is significant. If you are drafting an agreement in which you hope to achieve the outcome of having the contractor indemnify the customer, which is a very com- monly attempted outcome, then your contract must intone the magic words described in Fowler v. Boise Cascade. Implied duty of good faith Many if not most contracts contain a provision known as an "integration or zipper clause." ese provisions mean that the final version of the agree- ment contains the entire agreement between the parties. e point of an integration clause is to avoid post hoc efforts by one of the parties to intro- duce evidence that the parties actually agreed to something different than what the words on the page say. In a 1995 case, the Maine Supreme Court said, "Not so fast." e case, Top of the Track Associates v. Lewiston Raceways Inc., stands for the proposition that the law may impose obligations on the parties that are not contained within the four cor- ners of the document such "implied provisions as are indispensable to effectuate the intention of the parties." Although the fullest implications of that statement have since been pared back somewhat, the take-away for contract drafters is to consider and memorialize the fundamental assumptions of the parties regarding their contractual undertaking. Kevin Hale y is an attorney a n d c o n t r a c t l a w e x p e r t a t B r a n n a n d I s a a c s o n i n Le wiston. He can be reached at khale y@brannlaw.com Navigate Maine's essential contract law in the age of COVID Promote your business webinar online by registering for free at Mainebiz.biz and completing the form at mainebiz.biz/post-an-event. Events will be edited as needed by Mainebiz staff, and then posted online. Need help marketing your webinar? Let us help you reach your target audience! LIST YOUR WEBINAR ON OUR BUSINESS CALENDAR MAINEBIZ.BIZ/POST-AN-EVENT At Jensen Baird, our commitment is to you. Maine lawyers. Maine clients. Maine values. Portland / Kennebunk 207-775-7271 • 1-800-756-1166 • jbgh.com We know what our clients need, because we know Maine. Our lawyers understand the unique challenges of living and doing business here. We aren't part of a huge national firm, we're part of the community. And we've been that way for over 60 years. As a small state, Maine has a relatively thin canon of legal cases interpreting or applying major principals of the common law of contracts.

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