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{{Short description|Contract clause mandating payments}}
{{redirect|Hell or highwater|the band|Atreyu (band)|the album by David Duchovny|Hell or Highwater (album){{!}}''Hell or Highwater'' (album)|other uses|Hell or High Water (disambiguation)}}
{{Contract law}}
{{Use mdy dates|date=March 2021}}
A '''hell or high water clause''' is a clause in a [[contract]], usually a [[lease]], which provides that the payments must continue irrespective of any difficulties which the paying party may encounter, usually in relation to the operation of the leased asset. The clause usually forms part of a [[parent company guarantee]] that is intended to limit the applicability of the doctrines of [[Impossibility of performance|impossibility]] or [[frustration of purpose]]. The term for the clause comes from a colloquial expression that a task must be accomplished "come hell or high water", that is, regardless of any difficulty.

== History ==
Linguistic historian Robert Hendrickson claims in his book ''Encyclopedia of Word and Phrase Origins'' that the saying derives from a phrase used by sailors in the 1600s "between the devil and the deep blue sea".<ref>{{Cite book |last=Hendrickson |first=Robert |title=The Encyclopedia of Word and Phrase Origins |location=New York |publisher=Facts on File |year=1997}}</ref>

The first mention of a hell or high water clause in United States case law was in the February 2, 1960, case of ''Matits vs. Nationwide Mutual Insurance Co.'' In that case, Nationwide sought to deny insurance coverage to a woman who loaned her car to a friend, after the friend got into a collision. Due to the particular wording of the omnibus clause within the insurance policy, which in itself contains the hell or high water clause, the court ruled that Nationwide must provide coverage for the collision.<ref name=matits>{{cite web |title=Matits v. Nationwide Mutual Ins. Co., 157 A. 2d 853 (1960) |url=https://scholar.google.com/scholar_case?case=15528991476961095420 |website=<!--Not a source itself: Google Scholar--> |access-date=18 October 2021}}</ref>

== Applicable transactions ==

=== Equipment leases ===
One of the most common uses for a hell or high water clause is the writing of equipment leases. Whether or not the phrase "hell or high water" is explicitly written, the general meaning of it has been included in a majority of equipment leasing contracts over the past few decades.<ref name=":0">{{Cite journal |date=January 2018 |first=Paul |last=Bent |title='Trial of the Century' Takes on Hell or High Water |url=https://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2018/01/01/trial-of-the-century-takes-on-hell-or-high-water/ |access-date=2020-12-18 |journal=Law Journal Newsletters}}</ref> The clause requires that the lessee assumes virtually the entirety of the risk associated with the rented equipment, even in extreme cases. This includes but is not limited to cases where the equipment is destroyed, lost in some way, deemed inoperable, neglected repairs, deemed unfit for use, or even when the purchaser dies.<ref>{{cite journal |last1=Graynor |first1=Barry A. |last2=Davidson |first2=Teresa |last3=Huddleson |first3=Edwin E. |last4=Whelan |first4=Stephen T. |title=Uniform Commercial Code: Leases |journal=Business Law |date=2007 |volume=63 |page=1301}}</ref><ref>{{UCC|2A|504}}. Liquidation of Damages.</ref>

=== Project finance transactions ===
Another key aspect of the protections provided by the hell or high water clause is that it applies to the lessor's funding sources.<ref name=":0" /> In the industry of equipment leasing, lessees have two broad options: lease equipment from a company that owns the equipment or sign a contract with an equipment finance company which will pay for the equipment. Even if the person or organization that funds the transaction did not sign the contract between the lessor and lessee, they are still shielded by the clause and can rest assured that nearly all the risk is attributed to the lessee, except in the case of credit failure.<ref>{{Cite journal |title=Structured Finance and Revenue Streams: Not Absolute and Unconditional |url=https://www.monitordaily.com/article-posts/structured-finance-and-revenue-streams-not-absolute-and-unconditional/ |first=Kenneth P. |last=Weinberg |date=November–December 2015 |access-date=2020-12-18 |journal=Monitor |language=en-US}}</ref> In cases where the lessor is viewed solely as a source for money, the lessor is provided special protections by Article 2A of the [[Uniform Commercial Code]] discussed in {{format link|#Enforceability}} below.

=== Real estate leases ===
The concept of hell or high water exists in the real estate market, but only in commercial real estate. It is not very widely used in real estate, and is generally only used in [[bond lease]]s, which are also referred to as "triple net leases" or "hell or high water leases".<ref>{{cite journal |last1=Cozmei |first1=Cătălina |last2=Onofrei |first2=Muler |title=Impact of Property Taxes on Commercial Real Estate Competition in Romania |journal=Procedia Economics and Finance |date=2012 |volume=3 |pages=604–610 |doi=10.1016/S2212-5671(12)00202-X|doi-access=free }}</ref><ref>{{cite web |last1=McMurray |first1=John |last2=Mundel |first2=Samuel |title=Real estate lease-backed securities |url=https://dspace.mit.edu/bitstream/handle/1721.1/9872/41560888-MIT.pdf |website=DSpace@MIT |publisher=Massachusetts Institute of Technology |access-date=18 October 2021 |page=37 |date=September 1997}}</ref> Typical triple net leases require tenants to be responsible for paying rent, utilities, maintenance, HVAC expenses, roofing repairs, and even property taxes. Hell or high water leases take the typical triple net lease a couple steps further by making the tenant to be responsible for every fathomable expense related to the property, which in effect makes the hell or high water lease the most extreme form of triple net leases. As with some other applicable transactions of hell or high water, this type of lease makes the tenant responsible for payments associated with unexpected events which some refer to as acts of god. At no point is the tenant allowed to terminate the lease or receive rent abatements. If a property is condemned for whatever reason, the tenant must continue to pay rent despite not being able to inhabit the property. If the property is destroyed or damaged, not only does the tenant still need to pay the agreed upon rent, but the tenant must pay to either replace or repair the building regardless if the insurance claim covers the cost.{{citation needed|date=October 2021}}

=== Mergers and acquisitions ===
When attempting to merge two businesses or acquire another, one big roadblock that companies typically come across is [[antitrust law]]. Companies must negotiate on how to split the costs of potential litigation, fines, [[divestitures]], and expensive antitrust investigations. When one party has more leverage in this negotiation, they may consider utilizing a hell or high water clause. This allows one party to assign all the [[financial risk]]s associated with antitrust approval to the other party. It may seem surprising that any company would agree to a merger with a hell or high water clause, but sometimes agreeing to the clause is the only way the party with less leverage can secure the deal (e.g. because there are competitors for the stronger company). Additionally, companies may agree to a hell or high water clause because they assess that the risk of antitrust complications is low, or simply because the opportunity outweighs the risk. If a company agrees to take responsibility for all the risk by signing a hell or high water clause then they are required to take all actions possible to secure antitrust approval.<ref name=":1">{{Cite web |title=When Mergers Go Bad: How Merger Agreements Deal with Antitrust Risk in Today's Market |url=https://www.jdsupra.com/legalnews/when-mergers-go-bad-how-merger-71044/ |author=Proskauer Rose LLP |date=2019-09-20 |access-date=2020-12-18 |website=JD Supra|language=en}}</ref>

=== High-yield bonds (junk bonds) ===
When a company's [[Bond credit rating|credit rating]] falls it may have difficulty raising money via [[debt financing]]. Since it is riskier to buy a bond from a company with bad credit, their bonds are rated below invest-grade and referred to as junk bonds. To mitigate risk for noteholders, companies with low credit ratings that issue bonds must operate within a set of [[Covenant (law)|covenants]] that restrict the issuer's ability to take on further risk. Many of the covenants relate to the company incurring additional debt, but some covenants address changing ownership structure, paying [[dividend]]s, or selling off assets.<ref name=":2">{{cite web |title=High Yield Bonds - An Issuer's Guide (US Edition) |work=Perspectives & Events |publisher=[[Mayer Brown]] |url=https://www.mayerbrown.com/en/perspectives-events/publications/2016/12/high-yield-bonds--an-issuers-guide-us-edition |date=December 2016}}</ref> Despite all the restrictions of the covenants, companies are allowed some freedom through an idea called "baskets", where the company is allowed to bypass a certain covenant, usually by incurring a limited amount of debt in specific, agreed upon situations. The concept of hell or high water comes into play with a special basket that is named either the hell or high water basket or the general basket. This basket permits the company to incur a limited amount of debt for any reason, especially come hell or high water.<ref name=":2" />

== Enforceability ==
In both United States law and English law, the hell or high water clause has historically been upheld in numerous cases. In the United States, this clause is given special protection under Article 2A of the [[Uniform Commercial Code]] when the agreement is classified as a finance lease. The article states that this special protection applies to a lease that "consists of an overall three-party transaction in which: (1) the lessor does not select, manufacture or supply the goods, (2) the lessor did not own the goods before the lease was arranged and (3) the lessee either approves the purchase contract or receives specified warranty and supplier information before signing the lease agreement".<ref>{{Cite web|title=U.C.C. - Article 2A - Leases (2002)|url=https://www.law.cornell.edu/ucc/2A|access-date=2020-12-18|website=LII / Legal Information Institute|language=en}}</ref>

=== Exceptions ===
There are some exceptions to the enforceability of the hell or high water clause:

* Fraud: The hell or high water clause is not enforceable when fraud is present at any point in the relationship. If the lessor allegedly lures a lessee into a dubious arrangement the agreement may be determined to be null and void.<ref>{{Cite web |title=Hell or High Water Contract Explained |url=https://thebusinessprofessor.com/lesson/hell-or-high-water-contract-explained/ |first=Jason |last=Gordon |date=2020-12-17 |access-date=2020-12-18 |website=The Business Professor |language=en-US}}</ref> Another example of this is when the employees of an equipment vendor fraudulently represent themselves as agents of a finance lessor.<ref>{{Cite web |title=Attempting to avoid the Hell or High Water Clause by alleging Fraudulent Inducement |url=https://www.bakerdonelson.com/Attempting-to-avoid-the-Hell-or-High-Water-Clause-by-alleging-Fraudulent-Inducement-01-01-2007 |date=2007-01-01 |access-date=2020-12-18 |work= Dispatches from the Trenches |publisher=[[Baker Donelson]] |language=en |url-status=dead |archive-url=https://web.archive.org/web/20210916215447/https://www.bakerdonelson.com/Attempting-to-avoid-the-Hell-or-High-Water-Clause-by-alleging-Fraudulent-Inducement-01-01-2007 |archive-date=2021-09-16}}</ref> See ''[[McNatt v Colonial Pacific]]''.
* Purchaser refuses to accept goods: Unless it is explicitly specified otherwise in the contract, lessees can generally break an equipment leasing contract if they refuse to accept the goods, especially if the equipment or goods are faulty upon arrival.
* Intentional or willful acts of the lessor violating [[Public policy doctrine|public policy]]
* Intentional or willful acts of the lessor to prevent the lessee from fulfilling contract

=== Effects of COVID-19 ===
[[File:USNS Comfort New York City 2020.jpg|thumb|The hospital ship [[USNS Comfort|USNS ''Comfort'']] arrives in [[Manhattan]] on 30 March 2020 to assist with the Covid-19 outbreak]]
Some lawyers believe that hell or high water clauses will be upheld during the pandemic, given that pandemics are seen as an act of God, and because in the past acts of God such as [[Hurricane Sandy]] have not exempted lessees from their obligations under a hell or high water clause.<ref>{{Cite web |title=Enforceability of 'Hell or High Water' Clauses in the COVID-19 Business Environment |url=https://www.jdsupra.com/legalnews/enforceability-of-hell-or-high-water-12171/ |author=Troutman Pepper |date=2020-05-08 |access-date=2020-12-18 |website=JD Supra| language=en}}</ref> Some lawyers instead draw a distinction between past acts of God and [[COVID-19 pandemic|COVID-19]] in that the government forced many businesses to shut down, and speculate that courts would be hard-pressed to rule in favor of the lessor in this situation.<ref>{{Cite web |last=Blundell |first=Steph|date=2020-04-30 |title=Come hell or high water, or Covid-19: Managing contractual risks|url=https://www.pbctoday.co.uk/news/planning-construction-news/hell-or-high-water-contracts/75579/|access-date=2020-12-18|website=Planning, BIM & Construction Today|language=en-US}}</ref>

== Sample clause ==

{{blockquote|[Party's] obligations to pay all amounts due are absolute and unconditional and shall not be subject to any abatement, reduction, set off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever.
|author=''Hitachi Data Sys. Credit Corp. v. Precision Discovery, Inc.,'' 17-Cv-6851 (SHS) (S.D.N.Y. Aug. 13, 2019)
}}

== Notable cases ==
*''General Electric Capital Corp. v. FPL Services Corp.'', 986 F. Supp. 2d 1029 (N.D. Iowa 2013)
*''Hitachi Data Sys. Credit Corp. v. Precision Discovery, Inc.'', 17-Cv-6851 (SHS), (S.D.N.Y. Sep. 24, 2020)
*''McNatt v. Colonial Pacific Leasing Corp.'', 221 Ga. App. 768 (472 S.E.2d 435) (1996)
*''Equitex, Inc. v. Ungar,'' 60 P.3d 746, 750 (Colo. App. 2002)
*''Matits vs Nationwide Mutual Insurance Co.'', 59 N.J. Super. 373 (1960) (described in “History” section)

== See also ==
*[[Act of God]]
*[[Hardship clause]]
*[[Force majeure]]
*[[Meeting of the minds]]

== References ==
{{Reflist}}
<references group="" responsive="1"></references>

==External links==
* {{cite journal |last1=Graynor |first1=B. |title=re hell or high Water Clauses and Waiver of Defense Clauses Enforceable? |journal=Business Law Review|publisher= State Bar of California |date=Winter 1999 |pages=35–36 |url=https://www.cooley.com/files/tbl_s5SiteRepository/FileUpload21/182/A-BGraynor.pdf|archive-url=https://web.archive.org/web/20120319032731/https://www.cooley.com/files/tbl_s5SiteRepository/FileUpload21/182/A-BGraynor.pdf |archive-date=March 19, 2012 }}
* {{cite journal |last1=Graynor |first1=B. |title=Hell or high water clauses: Make them work for you |journal=ETL |date=2003 |pages=10–13 |url=http://www.cooley.com/files/tbl_s5SiteRepository/FileUpload21/127/A-2003-Graynor-hell_or_1.pdf |archive-url=https://web.archive.org/web/20111001123423/http://www.cooley.com/files/tbl_s5SiteRepository/FileUpload21/127/A-2003-Graynor-hell_or_1.pdf |access-date=18 October 2021|archive-date=October 1, 2011 }}
*[https://www.law.cornell.edu/ucc/2A Uniform Commercial Code]

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[[Category:Contract clauses]]