We are getting contacted by restaurateurs who want to get out of their lease because they have to close their sit down / dine in operation and only offer delivery / take out, but can they?
The appellate courts have held that "[i]n order to invoke this defense, 'the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense.'"
On that holding, the doctrine of frustration of purpose seems like it may get a restauranteur out of their lease.
In that holding, an office was able to terminate their lease because the CO didn't permit office use. Through analogizing to where an office tenant utilized frustration of purpose to get out of a lease because of an "inability to lawfully use the premises" based upon the CO, it's possible that a restaurateur can utilize the doctrine of frustration of purpose to terminate the lease where the purpose of the lease was to offer sit-down dining and now the same is not allowed as a matter of law.
However, appellate courts have also held that "a frustration of purpose defense 'is not available when the event preventing performance was foreseeable.'"
Expect a lot of restaurants to make this argument going forward and the issue of foreseeability will be everything if it gets to a trial.
