April 18, 2021

Volume XI, Number 108


April 16, 2021

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Massachusetts Court: COVID-19 Closure Order Partially Discharges Commercial Rent Obligation Under “Frustration of Purpose” Doctrine

Commercial tenants who are unable to pay their rent as a result of COVID-19 shutdown and capacity-limit orders have, thus far, found little relief from courts, who have by and large rejected their common law defenses seeking a discharge of lease obligations. One recent Massachusetts case, however, sides with a commercial tenant, albeit under narrow circumstances, approving of the often-unsuccessful “frustration of purpose” defense.

In UMNV 205-207 Newbury, LLC v. Caffé Nero Americas Inc., pending in Massachusetts Superior Court, the defendant tenant Caffé Nero could not make its rent payments after Massachusetts Governor Charlie Baker barred all restaurants in Massachusetts from allowing on-premises dining. In a lawsuit for damages filed by landlord UMNV, Caffé Nero argued that its rental payment obligations should be discharged under the “frustration of purpose” doctrine, which excuses a party from performing contractual obligations when an event neither anticipated nor caused by either party, the risk of which was not allocated by the contract, destroys the purpose of the contract, thereby destroying the value of the performance.

Finding in favor of Caffé Nero, the Court focused on specific restrictive language in the lease that narrowed and defined the “purpose” of the contract, namely that Caffé Nero: (1) was permitted to use the leased premises “solely” for the operation of a Caffé Nero-themed cafe and for “no other purpose;” (2) was required to operate its café in order to serve food and beverages “in a manner consistent with other Caffé Nero locations in the Greater Boston area,” which meant “serv[ing] great coffee and food that customers could enjoy and linger over in a comfortable indoor space,” and (3) could only offer take-out sales “from its regular sit-down restaurant menu.” Given this specific and restrictive language, the Court discharged Caffé Nero’s rental payment obligations under the “frustration of purpose” doctrine for the period of time the Governor barred restaurants from allowing indoor dining. The Court reasoned that the lease was clear, in that Caffé Nero was allowed to use the leased premises “solely” to serve food and beverages from a sit-down restaurant menu that its customers could enjoy and linger over in an “indoor” space, and for “no other purpose.” This purpose was frustrated when the Governor barred Caffé Nero from allowing indoor dining.

Although decided on a narrow set of circumstances, commercial landlords and tenants alike, and their counsel, should review their leases for similar language restricting the “purpose” of the lease that may open the door for reliance on the “frustration of purpose” doctrine.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XI, Number 57



About this Author

Tim Fazio Litigation Attorney Hunton

Tim is a high-stakes litigator and trial lawyer who maintains a diverse national practice, concentrating in complex business litigation and government/internal investigations.

In nearly 20 years of practice, Tim has represented and advised clients in a host of significant litigation and investigation matters ranging from breach of contract litigation to investigations by the Department of Justice and State Attorney Generals.

Tim is an experienced litigator and trial lawyer who routinely handles “bet-the-company”-size matters in state and federal courts throughout the...

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Brian J. Bosworth Litigation Attorney Hunton Andrews Kurth Boston, MA

Brian focuses his civil litigation practice on a variety of complex business and commercial disputes. He has particular experience with matters related to intellectual property, employment litigation, unfair competition, breach of contract, and internal and regulatory investigations.

Brian has successfully defended clients at all stages of litigation—from pre-litigation counseling to dispositive motions and trial.

A graduate of Boston College in 2007, Brian attended Northeastern University School of Law in 2012. While in law school, he worked as a law clerk at Cooley Manion...