Corona between force majeure and emergency conditions theories

On March 11, 2020, the World Health Organization announced that the new Corona virus, which causes “Covid 19”, which is spreading in every corner and part of the world, is a “global pandemic.”

It has become an obligation for every country in the world to take the precautionary measures to be taken in such cases, and this undoubtedly affected normal life in general, and contracts and obligations in particular.

There is no doubt that the Corona epidemic is a foreign cause for the contract, because it is a something that is outside the control of the contractors and occurred suddenly without anyone expecting it, the degree of its impact likening wars and natural disasters that prevent the contract from being implemented as agreed upon. Its impact may reach the impossibility of implementing the contract, and until we learn about the role of the epidemic in the implementation of contractual obligations, we must first learn about each of the two theories, as there has been actual debate about whether the impact of the epidemic is from emergency conditions or from force majeure, due to the difference in the legal effect of both of them, the difference between them must be clarified.

 

First, the theory of emergency conditions

According to the theory of emergency conditions, the emergency circumstance must be unpredictable, and that the contractor would inflict heavy and exceptional losses beyond the usual normal handling loss that would result in serious damage. If the emergency condition did not result in any loss, or the loss was slight, or the effect of the emergency condition is in missing the opportunity for profit on the contractor decreased his profits, then there is no room to implement this theory, nor does it lead to the termination of the obligation, but rather, the judge returns the obligation to a reasonable extent so that the debtor can bear its implementation without exhaustion

Terms for applying the theory of emergency conditions

The Qatari legislator took this theory into account in the second paragraph of Article 171 of the Civil Law, which states: ((2- However, if there are exceptional general accidents that could not be expected and result in their occurrence that the implementation of the contractual commitment, and if it becomes impossible becomes stressful to the debtor so that it threatens him with a heavy loss, the judge may depending on the circumstances and after the balance between the interest of the two parties to return the exhausted commitment to a reasonable extent. Any agreement otherwise becomes void))

It is clear from the text of the article that the Qatari legislator has set a condition for applying the theory of emergency conditions, which are three terms:

  • The general emergency condition occurred after the obligation was created
  • Unable to anticipate the emergency condition
  • The implementation of the commitment becomes exhausting and not impossible

The indicated fatigue is the extreme fatigue that exceeds the usual loss in dealing, and it is what distinguishes the emergency circumstance theory from the theory of force majeure whose commitment is impossible to implement in its existence

Second, the theory of force majeure

Force majeure is achieved by an accident that cannot be anticipated and cannot be prevented, and it is defined as a foreign cause that falls outside the will of the parties, making the commitment impossible, and the impossibility means that the parties are not able to prevent or overcome this cause.

For the force majeure to be fulfilled, several terms are required:

The impossibility of implementing the obligation, and the obligation whose implementation was impossible to implement must be a basic, not a subordinate obligation, and the impossibility is complete, not partial, that includes the entire contract. The impossibility must arise at a later date for the obligation, as it is required in the application of force majeure that there is no mistake issued by the debtor who adheres to it, and if these three conditions are met, we are in the process of force majeure preventing the implementation of the obligation contained in the contract. And if it becomes evident to the judge that the impossibility is temporary, the obligation may be suspended until it ceases, but if the impossibility is absolute, then the obligation shall be terminated due to the impossibility of implementation.

Third, the extent to which the Corona Pandemic is subject to either theory

The clear and explicit criterion here is the extent of the impact of the epidemic on the contract to be implemented, and if the effect is overstretching one of the parties to the contract that the Corona epidemic causes a high cost of production or increased freight prices in a fatigue then the epidemic is considered here as an emergency. But if the Corona epidemic causes the impossibility of implementing the contract, such as transporting the raw materials becomes impossible due to the closure of the borders of a country, the epidemic becomes a force majeure.

Finally, after we fully explained both theories and extent of Application of Corona Pandemic on each of them and the legal effect of both of them, remained is the practical aspect in applying both theories on Qatari Fact and extent of contractual obligations and here we shall consider the following:

First:Qatari Jurisdiction shall issue its decision in extent of applying Corona Pandemic on each of both theories and extent of effect on contractual obligations.

Second:we can’t generalization as to applying one of theories on Qatari Fact, so we could apply one theory on some activities and another on the remaining commercial activities.

Third: Each affected party, whatever each nature of obligation or Contract (when need and necessary), shall resort to The Judge and fill his suit after collecting all documents support its affection of pandemic and wait until the sessions start, God Welling, and take all his rights by Judicial rule and indemnify if prove his damages.

Fourth: from our viewpoint, amicable understanding shall be conducted, and each party shall carry part of the loss due to general circumstances as all of us in one boat and it’s not justice to make one party bear the damage only.

Fifth: It’s established by principle of jurisdiction that emergency of pandemic and illness is force majeure which obstructs execution of contract and there are some judicial experiences affirmed that.

Finally, we may say that: there is who affect in extent that his obligation by him becomes impossible which make us apply theory of Force Majeure. And there is who is tired by quarantine, so in this case emergency circumstance theory shall be applied and there are who didn’t affect and in this case, no theories are applied and appreciation of this is back to jurisdiction authority.

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