Obligations
Douglas, Michael and John Eldridge, ‘Coronavirus and the Law of Obligations’ [2020] 3 UNSW Law Journal Forum 1-11Jurisdiction: Australia
Abstract: COVID-19 has touched every aspect of Australian society, including the law of obligations. This comment considers how the pandemic could affect contracts – a topic which is already a very popular subject of law firms’ client updates. After discussing frustration and force majeure, it addresses a few relevant torts, including trespass to the person, the tort recognised in Wilkinson v Downton, and negligence. The comment is intended to provoke further dialogue on how COVID-19 is affecting Australian law, including in the forthcoming thematic issue of the University of New South Wales Law Journal on ‘Rights Protection amidst COVID-19’.
Contract Law
This section includes literature on the United Nations Convention on Contracts for the International Sale of Goods (CISG) Abuwasel, Mahmoud, ‘The Coronavirus Pandemic in Contract Law: Companies Disrupted by the Spread of Coronavirus May Seek to Have the Pandemic Recognised as a Hardship Event.’ (2020) 5(4) MEED Business Review 24–25 Adegoke, Taiye, ‘COVID-19: Possible Defences to a Non-Performing Party in a Commercial Contract’ (SSRN Scholarly Paper No ID 3588069, 26 March 2020) Abstract: It is no longer news that the world is confronted with a common enemy today – the novel Coronavirus 2019 popularly known as COVID-19. The virus was first discovered in China and has today spread across over 190 countries around the globe. COVID-19 has disrupted the world economy and businesses across the globe are heavily hit by the operation of the pandemic. There is no gainsaying the fact that this novel coronavirus has surfaced in Nigeria with over 40 cases discovered so far as at the time of this article and still counting. The Nigerian Government, like other countries of the world have taken some measures to contain the spread of this virus in the most populous nation in Africa, which measures obviously is taking a hard toll on businesses, transactions and the economy at large. While the world continuously strives hard to put an end to this misery ravaging the whole world, it is almost certain that the post COVID-19 world would likely herald a bundle of commercial disputes possibly arising from breach of obligations as a result of the sudden outbreak of this disease. Thus, commercial lawyers would be called upon to review various commercial agreements and defaulting litigants would rely on commercial lawyers, to present a solid defence for them, to the breach of their obligations resulting from the COVID-19 disorder.
Agarwal, Tanya, ‘The Aircraft Leasing Contracts in the Pandemic Era: Navigating the Challenges of Invoking Force-Majeure by Applying Hardship under International Commercial Law’ (2023) 6(1) Sorbonne Student Law Review - Revue juridique des étudiants de la Sorbonne_ _Abstract: The majority of aircraft are acquired on leasing agreements where the financial burden is on the lessor because such agreements involve financing of heavy equipment for the lessee. Therefore, to ensure that the lessee fulfils his obligation towards the payment of lease, Hell or High-water clause is drafted in the contract. This enforces payment by the lessee to the lessor irrespective of any circumstantial change which makes it difficult for the lessee to pay. However, due to the pandemic, the airline industry is suffering from a severe cash crunch as a result it has become difficult for them to honour their upcoming contractual obligations. The airline companies are debating to invoke Force Majeure in these contracts to avoid liability for non-performance, but considering the nature of such contracts and the legal principles adopted in Private International Air Law, taking such measures might pose several challenges. Therefore, this paper proposes the application of Hardship codified in the UNIDROIT Principle of International Commercial Contracts so that airlines can renegotiate the contract with the lessors and avoid liability for delayed or non-performance of the contract instead of completely avoiding their contractual obligation by invoking Force Majure. This will provide breathing space to the lessee and also ensure his obligation towards the lessor is maintained during the pandemic thereby ensuring the lessor is financially safeguarded.
Agarwal, Tanya, ‘Revaluating Aircraft Leasing Contracts in the Pandemic Era: Navigating the Challenges of Invoking Force-Majeure by Applying Hardship under International Commercial Law’ (2021) 15(Special Issue) Novum Jus (advance article, published online 17 December 2021) Abstract: Majority of aircraft are acquired on leasing agreements, and the financial burden is on the lessor due to financing heavy equipment for the lessee in these agreements. Therefore, to ensure that the lessee fulfils his lease payment to the lessor, Hell or High-water clause is drafted in the contract. This enforces payment by the lessee irrespective of any circumstantial change which makes it difficult for the lessee to pay. However, due to the pandemic, the airlines have suffered from a severe cash crunch making it difficult for them to honor their upcoming contractual obligations. The airline companies are debating to invoke Force Majeure in these contracts to excuse nonperformance and avoid damages, but considering the development in Private International Air Law and nature of the contract, taking such measures will be difficult. This paper proposes to apply Hardship codified in the UNIDROIT Principle of International Commercial Contracts so that airlines can renegotiate the contract with the lessors instead of completely avoiding their contractual obligation. This will provide breathing space to the lessee and also ensure his obligation towards the lessor is maintained during the pandemic.
Al Majed, Bashayer and Abdulaziz Al Majed, ‘Frustration v Imprévision, Why Frustration Is so “Frustrating”: The Lack of Flexibility in the English Doctrine’s Legal Consequence’ (2024) 45(1) Liverpool Law Review 25–48 Abstract: The COVID-19 pandemic and subsequent economic restrictions have placed many contractual parties under great strain to honour their agreements as contracts have become commercially impracticable and excessively onerous. This article explores the legal position in England, France and the Middle East under the doctrine of impossibility, impracticability and unforeseen circumstances. Strongly rooted in contractual autonomy and commercial certainty, this article argues that frustration in English common law is not sufficiently broad because the consequence (automatic discharge) is too rigid and does not allow a renegotiation of obligations. French civil law is more accommodating but only formally adopted imprévision in civil law in 2016, meaning it lacks traction. However, Middle Eastern civil law countries accept the doctrine as an integral part of their law and theory of justice, allowing obligations to be rebalanced in a more flexible manner. The English legal system should consider the advantages of a similar reform.
Alhawezy, Rebaz A Bakir, ‘The Fate of Contractual Obligations Amidst COVID-19 An Analytical Legal Study’ (2022) 3(2) Polytechnic Journal of Humanities and Social Sciences 171–179 Jurisdiction: Iraq
Abstract: The Covid-19 crisis, known as Corona, has a negative effect on contractual obligations at the national and international levels. Many problems have occurred in the world after Corona various invaded countries of the world. Which necessitated studying it and coming up with a jurisprudential legal opinion about the problems that occurred in the contracts concluded before Covid-19, whose implementation postponed until his time. This research comes to answer a set of questions that concerns the legal problems of developments in contractual obligations in the time of Covid-19 that make contractual obligations negatively affected by Covid-19. The scientific material for this study divided into two chapter. The first chapter was devoted to the definition of COVID-19 and its legal framework. The second chapter deals with the consequences of COVID-19 along with jurisprudential-legal opinions about the problems that occurred, and the research followed by mentioning the most important outcomes and recommendations.
Alpa, Guido, ‘Coronavirus and the Law in Europe: Remarks on the Effects of the Pandemic on Long-Term Contracts’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The Coronavirus epidemic shapes a situation that can be considered an event of force majeure, characterised by unpredictability, exceptionality and uncertainty in its duration and then impossibility of performing and termination of contract. It is necessary to take into account also the provisions adopted by national legislators concerning limitation of economic activities, working, traveling, moving etc. These limitations result in orders and prohibitions, modifying the performance of contracts, sometimes causing impossibility. In Italian law these events are considered ‘factum principis’, whose legal effects are similar to force majeure. Factum principis and force majeure affect long-term contracts, and may cause temporary supervening impossibility or supervening excessively onerous nature of the performances. In the first case, the performance may be postponed, in the second the contract shall be terminated. Italian Civil Code’s provisions suggest how the risk may be allocated between the parties in different situations submitted to the judge.
Amelia, Tina, ‘Qualification of Force Majeure in the Covid-19 Pandemic as a Reason for Cancellation of Contract’ (Proceedings of the 1st International Conference on Law, Social Science, Economics, and Education, ICLSSEE 2021, March 6th 2021, Jakarta, Indonesia, 2021)Jurisdiction: Indonesia
Abstract: Engagement is a legal relationship that occurs between the parties who have agreed on the matters set forth in the contract that creates an obligation to fulfill the contents of the contract. However, there is a situation where one party is unable to perform its accomplishment due to event occur against its will, known as force majeure. In dealing with Covid-19, Presidential Decree No. 12 of 2020 concerning the Determination of Non-Natural Disaster for the Spread of Corona Virus Disease 2019 (Covid-19) as a National Disaster rise public speculation about whether the Covid-19 pandemic can qualify as force majeure due to the effects of the Covid-19 pandemic disrupting activities in the business sector which resulted in the inability to fulfill accomplishment, thus making the Covid-19 pandemic an excuse to cancel the contract. Research method in this research is juridical-normative legal research. The results of this study that the Covid-19 pandemic cannot be used as a reason for contract cancellation because it must analyzed the force majeure clause states in contract first, and the real conditions to fulfill obligations in the contract. With the Covid-19 pandemic possible to conduct negotiations to postpone, change or cancel the contents of the contract.
Amuda, Yusuff Jelili et al, ‘Qualitative Exploration of Legal, Economic and Health Impacts of Covid-19 in Saudi Arabia’ (2021) 6(0) Emerging Science Journal 1–14 Abstract: Since the outbreak of COVID-19, several researches have been conducted in different parts of the world, including Saudi Arabia. However, there is little focus of attention on qualitative exploration of the impacts of COVID-19 in the context of Saudi Arabia. The primary objective of this study was to explore the opinions of legal, economic, and medical experts pertaining to the impacts of COVID-19. The finding of the study revealed that the current pandemic of Covid-19 has multidimensional impacts in Saudi Arabia. The pandemic has negative impact not only on the social and economic areas but also on the legal sphere. The findings further indicated that the legal impact of COVID-19 has been mentioned in the aspect of the inability to perform contracts that have the potential to trigger default or force majeure provisions leading to litigation or reconciliation. If not properly addressed through effective measures and policy, the impact of the COVID-19 on the legal, economic, and health spheres would have severe consequences.
Anjos, Maria do Rosario, ‘Public Procurement in Times of Pandemic Covid 19: The Exception Regime in Portuguese Law and Times of Change in E.U.’in Jeton Shasivari and Balázs Hohmann (eds), Expanding Edges of Today’s Administrative Law (ADJURIS, 2021) 196–204 Abstract: This work focuses on the importance of public procurement in the context of the recent COVID 19 pandemic and the impact it has had on the legal rules for these con- tracts. The analysis refers to the context of the Portuguese legal order and its connection to the European Union law. Objectives: examine the effects of the pandemic on the legal regime of public procurement in Portugal and its compliance with EU law. Analysis of legislative measures adopted by the prevention, containment, mitigation and treatment of epidemiological infection by COVID-19. Methodology: study of new legal measures introduced in pandemic time and study of the solutions adopted by Portuguese law. Results: we present the results of analysis of changes to the rules applicable to the formation of public works contracts, contracts for the leasing or acquisition of movable property and the acquisition of services, provided by the administrative public sector or similar, as result of the pandemic crisis.
Ayalew, Dessie Tilahun, ‘The Application of Force Majeure and Hardship Clauses in Ethiopia and China in Light of International Law in Situations of COVID19 Pandemic: The Law and Practice’ (2023) 4(3) Journal of Marketing Management and Consumer Behavior 1-25 Abstract: COVID-19 pandemic has multiple consequences and knocked multiple disciplines after its occurrence throughout the globe. Among the disciplines touched by the pandemic is the role of law presented as an excuse for the responsibility of non-performance of owing to the pandemic. The COVID-19 pandemic highly affects international commitments, such as international investment contracts and other similar undertakings. Therefore, this paper questioned the status of international law in giving immunities for states for non-performance of international obligations during the pandemic periods. In doing so, the paper tried to compare and contrast the legal system of China and Ethiopia by taking international commercial law as a mirror. The findings revealed that most jurisdictions give immunities for the non-performance of the states’ commitments owing to the COVID-19 pandemic.
Bakung, Dolot Al Hasni et al, ‘The Urgency of Establishing a Legal Entity Issuing Force Majeure Certificates Against Creditor Protection During the Covid-19 Pandemic’ (Proceedings, 3rd International Conference on Law Reform, 2022) 148–156 Abstract: The Covid-19 that occurred in recent years has had an impact on public health as well as the economic sector. It has caused the Indonesian economy to experience a slump in the second quarter of 2020 until the real GDP contracted and its value became IDR 2,590 trillion, which previously was IDR 2,735 trillion in the second quarter of 2019. Accordingly, the government announced Presidential Decree No. 12 of April 13, 2020, on the determination of non-natural disasters due to the spread of COVID-19 in 2019, a national disaster, making use of it. The issue is that the economic impact affects creditors in paying their obligations to debtors. The problem is that the emergency status of Covid-19 does not necessarily cause force majeure that has an impact on losses for creditors. Therefore, it is necessary to form a state agency that specifically issues force majeure certificates like in China so that it can be used as a reference that the debtor is proven to have experienced force majeure. This certificate serves the purpose of proof which will ultimately be considered among all relevant factors by the court. Because in Indonesia, the only way to interpret force majeure in court is based solely on the opinion of the judge, and the creditor’s position does not have strong evidence to prove in a state of force majeure. The formulation of the problem in this study is: what about the concept of force majeure for loan protection in Indonesia? How to Establish a Legal Entity Providing Force Majeure in Indonesia Design Certificate?
Bakung, Dolot Al Hasni, Mohamad Hidayat Muhtar and Nabih Amer, ‘Comparative Analysis of Legal Policies Regarding Force Major During Covid-19 Pandemic in Indonesia and China’ (2022) 3(1) Batulis Civil Law Review 8–18 Abstract: Covid-19 as a pandemic in the 20th century has brought consequences in many aspects, one of which is the force major aspect. The force majeure policy in Indonesia is still incomplete, unlike China, which already has a more complete policy. The purpose of the research is to be able to find out about the Covid-19 policy in Indonesia and to compare the Indonesian and Chinese force major policy settings. The research method uses a normative research type with a statutory approach. The results of the study show that Indonesia’s policy in dealing with covid 19 has problems in two policies, namely: the provision of information and the Lockdown policy. Meanwhile, the comparison problem with China is better by providing a mechanism with more legal certainty, namely providing access to the determination of force major against the Supreme Court, while Indonesia does not have a similar mechanism.
Barnett, Katy and Matthew Harding, ‘Contract in the Time of COVID-19’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)
Beale, Hugh and Christian Twigg-Flesner, ‘COVID-19 and English Contract Law’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The narrow doctrine of frustration in English Contract law (under which the parties’ outstanding obligations are discharged automatically) applies only when performance of a contract is impossible because of a change in circumstances. Although much-discussed, ‘frustration of purpose’ applies only when the change has defeated the purpose for both parties and has very seldom been applied. Pre-COVID-19 law contains a few exceptions, but mostly for consumer contracts. The measures taken to relieve parties affected by COVID-19 do not involve any significant changes to contract law. Changes relevant to contracts involve delaying enforcement procedures or changes to the Financial Conduct Authority’s regulatory requirements to provide for ‘payment holidays’ for consumer credit or other financial services. Limited changes to contract law may emerge, but no significant permanent changes.
Beale, Hugh and Christian Twigg-Flesner, ‘COVID-19 and Frustration in English Law’ in Sergio Garcia Long (ed), Derecho de Los Desastres: Covid-19 (Pontificia Universidad Católica del Perú, 2020) Abstract: In this chapter, we explore the ways in which the impact of COVID-19 on the performance of contracts would be dealt with under the doctrine of frustration in English law. Starting with the strict obligation to perform a contract, we outline the elements of the doctrine of frustration, including the operation of the Law Reform (Frustrated Contracts) Act 1943 and the possibility of contracting out of the Act. We then examine permanent, temporary and partial impossibility more closely. We also consider the relevance of force majeure and MAC clauses. We then identify elements of the doctrine of frustration which might be open to further development in the wake of the COVID-19 pandemic, although we do not anticipate significant changes to the law.
Berger, Klaus Peter and Daniel Behn, ‘Force Majeure and Hardship in the Age of Corona: A Historical and Comparative Study’ (2019) 6(4) McGill Journal of Dispute Resolution 76–130 Abstract: Force Majeure and Hardship provide legal tools to deal with the effect of unexpected future events and unforeseen changes in circumstances, particularly in long-term contracts. Given its global and unprecedented dimensions, its lethal potential and its drastic effects on international contracts the COVID-19 pandemic will generate years, if not decades, of post-pandemic litigation and arbitration focusing on the application of these two concepts. The paper examines the two concepts, from their historic origins over the different paths they took in civil and common law to modern transnational contract law as applied by international arbitral tribunals. Based on this historic and comparative analysis, the paper shows that in such extraordinary times, the doctrines of Force Majeure and Hardship assume the role of regular, rather than exceptional legal remedies, allowing for the risks emanating from the unprecedented crisis to be evenly distributed between the players in the global economy.
Bhatta, Snigdha, ‘Revisiting Force Majeure in the COVID-19 Pandemic: A Global Perspective’ (2020) 27(July) NEPCA Bulletin 10–17 Abstract: The present paper attempts to explore the legal trajectory of the force majeure doctrine, and discuss the extent of immunity offered by a force majeure clause in light of the pandemic. It will draw distinctions between the doctrine of force majeure and the doctrine of economic hardship, legal maxims that are often used interchangeably. The paper will also shed light on whether the said immunity can be claimed when there is no force majeure clause in the contract and will do so against the background of Nepalese law, Indian law, US law and UK law.
Bix, Brian, ‘COVID Concerns: Some Realism About Equitable Relief’ (2022) 85(2) Law and Contemporary Problems 37–49 Abstract: The present work focuses on the application of equitable doctrines to disputes arising out of the pandemic. It does not deal with the express contractual language that has also been the center of much pandemic litigation: force majeure clauses, specific provisions of business insurance contracts, material adverse change clauses in corporate acquisition agreements, et cetera. As is well known, “where the parties’ contract allocates the risk of a supervening event, the contract—not extra-contractual legal theories such as impossibility [and frustration of purpose and impracticability]—is paramount in determining if performance is excused.” In cases where there are relevant express provisions, the parties have expressly allocated certain risks between them; what remains are cases where the particular risk has not been allocated, and the default rules of contract law must decide who should bear the loss. As will be discussed, the relevant equitable doctrines, impracticability and frustration of purpose, are vague. It is precisely this uncertainty in meaning and application, and the ways courts are inclined to apply such indeterminate standards in the face of a global economic upheaval, that are interesting. The application of general standards will always be sensitive to background policy considerations. That sensitivity is further pronounced when equitable standards might excuse performance and limit the predictable enforcement of commercial agreements. Parties suffering under the conditions created by the pandemic hoped that they might be saved by the changed circumstances equitable doctrines, a hope that had some basis in the language of the doctrines. However, it is not surprising that, for practical reasons, the doctrines have been read quite narrowly, rarely offering the lifeline sought. In what follows, Part II summarizes the ‘black letter’ of the equitable doctrines relating to change of circumstances, Part III offers a short digression about realism and indeterminacy, Part IV looks at some prominent pre-pandemic cases, and Part V reviews some of the pandemic-era cases, before concluding.
Bjorklund, Andrea K, ‘Force Majeure in International Law During a Pandemic: Lessons from the COVID-19 Crisis’ in Philippe Bourbeau, Jean-Michel Marcoux and Brooke A Ackerly (eds), A Multidisciplinary Approach to Pandemics: COVID-19 and Beyond (Oxford University Press, 2022)
Blair, Sir William et al, ‘“Breathing Space”: Concept Note 2 on the Effect of the 2020 Pandemic on Commercial Contracts’ (SSRN Scholarly Paper No ID 3612937, 1 May 2020) Abstract: This paper shows which steps should be taken to minimise the risk of a deluge of disputes following the Covid-19 crisis and to increase the prospect of constructive outcomes.
Bondin, Annalise (2021), ‘The Impact of Covid-19 on Maltese Contract Law: Can the Absolute Binding Force of Contracts Be Mitigated under These Exceptional Circumstances?’ (Masters Thesis, Faculty of Law, University of Malta, 2021) Abstract: In 2020, COVID-19 took the world by storm and had an unprecedented negative impact on numerous businesses and individuals worldwide. In an effort to slow the spread of the virus, the State imposed restrictions and regulations consequently affecting the ability of many to honour contractual obligations. Essentially this triggered the writer to pursue the leitmotif of this dissertation, namely, the impact of COVID-19 on the performance of contractual obligation. Contracts legally entered into require the observance of the maxim pacta sunt servanda. This analytical overview addresses this legal concept binding unvitiated contracts, and the limited existent grounds allowed by law for the rescission, revision, or renegotiation of contracts under change of circumstances. This study is a product of a comparative law analysis of the exemptions to the doctrine of the sanctity of contract, namely the clausula rebus sic stantibus, the doctrine of impossibility, doctrine of frustration and force majeure. It examines to what extent the Court may discharge a party from its contractual obligations due to the changed circumstances. In its entirety the study concerns contracts that were contracted prior to the outbreak of COVID-19 and which have become onerous due to difficulties brought about by this nouveau pandemic. Ultimately this dissertation seeks to address the question whether the absolute binding force of contracts should be mitigated under these exceptional circumstances.
Booley, Asharaf, ‘COVID-19 versus Contractual Obligations: Case in Point South Africa?’ (2020) 20(6) Without Prejudice 42–43 Abstract: COVID-19 has impacted businesses and communities, leaving in its wake infections, death, shortages of essential services, unpreparedness and mental and physical uncertainty. One question is, what is the impact of COVID-19 lockdown on pre-existing contractual obligations?
Borghetti, Jean-Sébastien et al, ‘Procurement of Covid-19 Vaccines: Why Were Legal Liabilities Transferred to the Public Sector?’ [2021] (2) InDret Privado: Revista para el Análisis del Derecho 364–366 Abstract: The recent release of the Covid-19 vaccine supply contract between the European Commission and Astra Zeneca has caused a political and media storm about vaccine production logistics and supply issues. A lesser noticed but controversial issue revealed by the contract is that of where ultimate liabilities should lie, which has potentially far-reaching consequences for the public purse. Many commercial contracts include so-called indemnity clauses hereby one party contractually agrees to cover liabilities incurred by the other. The European Commission accepted in Article 14 of the agreement an extremely broad indemnity of the manufacturer covering almost any and every defect imaginable whether that be the vaccine’s inherent characteristics, manufacturing / distribution, and storage issues, labelling errors or even problems due to administration of the vaccine. This is a potentially significant burden to place on the state, and ultimately taxpayers.
Borghetti, Jean-Sébastien and Hans Schulte-Nölke, ‘Non-Performance and Change of Circumstances under French Law’ in Ewoud et al Hondius and Ewoud et al Hondius (eds), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: A major issue raised by the COVID-19 crisis is whether it constitutes a lawful ground for non-performance or the modification of contracts. French law traditionally took a very strict view on the binding force of contracts and only acknowledged force majeure as a cause of discharge of contract. However, the reform of contract law passed in 2016 has brought some changes and there are now several provisions in the code civil which may justify a discharge or an adaptation of contract in the case of a major change of circumstances. The COVID-19 crisis is now putting these provisions to test.
Briggs, Elijah C and Francis Ibekwe-Allagoa, ‘Frustration of Leasehold Contracts in Nigeria: A Case Review on the Tenets Espoused in Araka v. Monier Construction Company - Lessons in the Pandemic Era’ (SSRN Scholarly Paper ID 4050837, 6 March 2022) Abstract: The manifest twist and turns that emerge from the negotiation, conclusion and enforcement of contracts seldom come up when everything goes as contemplated and agreed by the parties. These readily foreseeable outcomes are easily accommodated as they were largely anticipated. The cookie begins to crumble when for certain uncontemplated and unforeseeable circumstances both parties find themselves unable to perform their respective obligations due under the contract – and then each rummages through the contract and tries to latch on any term to advance their claims for a breach of the contract with attendant remedies. The Supreme Court in Araka v. Monier Construction Company over three decades ago saw the need to enforce and expound the doctrine of frustration of contracts, being an offshoot of the legal consequences posed by the Biafra Civil War, after a long drawn legal sojourn from the High Court to the apex Court. This paper seeks to critically review the doctrines espoused in the locus classicus case and reflect upon them in the COVID-19 legal regime, where contracts, then and now, are fraught with the same matrix of facts and circumstances and proffers solutions on how the courts would eventually adjudicate upon same.
‘Building Contract Law: Hindrance to the Provision of Services by COVID-19’ [2020] (9 April) Lawyer (Online Edition) 1 Abstract: The article focuses on the impact of Covid-19 pandemic on construction law. It mentions consequences of this for construction projects depend on the work contracts. It also mentions that for difficulties that arise for a contractor as a result of COVID-19 force majeure he can therefore generally not claim any additional costs, and the contractor is also not entitled to adjust the contract on this basis.
Carr, Chris and Cyrus A Ramezani, ‘COVID-19, Force Majeure, and the Legal and Financial Implications of Utilizing Reefer Shipping Containers’ (2020) 87(1) Journal of Transportation Law, Logistics and Policy (forthcoming) Abstract: This article begins by discussing the rise of the refrigerated (‘reefer’) container industry and business model. It is important for readers to understand the growing importance of reefers to U.S. export, and how they contribute to supply chain complexity and port congestion. Next, we address how the Corona Virus (COVID-19) impacted reefer container transport. We then discuss how ocean carriers are utilizing the Force Majeure doctrine to their advantage in their transport of reefer containers, and the related legal implications of them doing so. We also analyze whether insurance covers cargo owner loss in this situation and what happens when the cargo owner decides to just walk away and abandon reefer containers when the ocean carrier exercises its right to discharge the cargo at an alternative port of convenience. The article concludes with recommendations regarding how cargo owners can move forward to analyze and mitigate risk.
Carrasco, Angel, ‘Parameters for Applying the Rules on Force Majeure to COVID-19 in Spain’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The aim of the article is to analyse how the spread of COVID-19 affects contractual relationships under Spanish law. A case-by-case approach is adopted – the key difficulties and paradoxes associated with the application of the current legal framework are determined by analysing the most typical difficulties encountered by the contractors due to the pandemics. The legal context is comprehensively presented: the core practical issues related to the functioning of the institution of force majeure are examined. The common problematic scenarios caused by the COVID-19 are addressed, i.a.: the practical impact of the all risk clauses on the risk distribution, the disappearance of causa of the contract, the tension between labour law mechanisms and force majeure. Finally, the possibility of classifying COVID-19 contingency as a force majeure contingency is examined (both the undisputed and the debatable force majeure contingencies are discussed).
Casey, Anthony and Anthony Niblett, ‘The Limits of Public Contract Law’ (2022) 85(2) Law and Contemporary Problems 51–71 Abstract: This Article proceeds in three parts. Part II briefly reviews the calls for expanding contract law to address the social costs of private behavior in a crisis. Part III discusses the costs of doing so. Part IV connects our analysis to existing doctrines of contract law.
Chen, Karen, ‘Catching Up to a New Normal: The Effects of Shifting Industry Standards on Contract Interpretation’ 90(6) Fordham Law Review 2839–2868 Abstract: During the COVID-19 pandemic, industries around the world were forced to adapt to a new way of life dictated by rising public health concerns. The pandemic’s rapid spread left parties struggling to determine whether contractual performance would be excused or reinterpreted. Issues of prevailing industry standards arose and brought into question the point at which parties and courts should define these standards. While some parties argued that industry standards at the time of contract formation are determinative of performance, others claimed that their agreement referenced industry standards that had changed and that, therefore, their performance obligations had changed as well. By looking at contract disputes brought about by the COVID-19 pandemic, this Note examines potential issues of contract interpretation that arise when industry standards referenced by the parties change within the life of a contract. This Note addresses these issues in the context of different types of contracts and examines the use of specific language that references industry standards in the agreements. Ultimately, this Note proposes a general application of an ex ante interpretation of industry standards that would avoid issues of uncertainty even beyond the context of the COVID-19 pandemic.
Cheng, Tai-Heng and Daniel R Perez, ‘COVID-19: Force Majeure and Common-Law Contract Defenses Under New York Law’ 13(2) New York Dispute Resolution Lawyer 44–46 Abstract: The COVID-19 outbreak and government measures to combat the virus are causing widespread disruptions throughout the economy. Parties unable to perform contractual obligations due to COVID-19-related disruptions should consider whether contractual force majeure provisions or New York common-law defenses of impossibility and frustration of purpose may provide a means of limiting liability for non-performance. Parties struggling to perform contractual obligations due to pandemic related circumstances should carefully analyze any relevant force majeure clauses, the potential applicability of any common-law defenses to performance, and the available dispute resolution mechanisms. A careful analysis of the available defenses and dispute resolution provisions may better enable parties to renegotiate their obligations and defend themselves against claims for non-performance.
Choi, Ji-Hung, Jiho Yoon and Ju Myung Song, ‘A Contract for New Vaccine R&D under COVID-19’ (SSRN Scholarly Paper ID 3781132, 7 February 2021) Abstract: This paper analyzes an incentive contract for new vaccine research and development (R&D) under a pandemic situation such as COVID-19. We study how a public sector (such as a government) designs an R&D contract and offers it to pharmaceutical enterprises. A simply agency-theoretic model is employed to explore the contract whose terms are an upfront grant as a fixed fee and a sales tax credit as an incentive tool. Examining how the values of related parameters affect contract term determinations, we found conditions that increase or decrease the tax credit and fixed fee. Unlike the general arguments from existing studies of incentive contracts, the role of a fixed fee outweighs the role of a tax credit for new vaccine development under pandemics. We also found that risk averseness and an in ated approval likelihood play significant roles in terms of the tax credit and fixed fee, respectively.
Choudhary, Namisha, ‘Law and Pandemic: Commercial Laws Changed in India during Covid-19’ (2021) 1(4) Jus Corpus Law Journal 532–539 Abstract: The research study has been undertaken with the purpose to study the changes in commercial laws in India during Covid-19. The study focuses on the force majeure clause and insolvency laws. The effect of the pandemic on the law has been analysed and how legal disruption was a measure to cope up with the pandemic. The research study also sheds light on the impact of a pandemic on business and how various strategies were undertaken in order to prevent the businesses from shutting down and go down to the edge of insolvency. The research focuses on commercial laws amended because of the loss economy faced during COVID-19 in India. However, examples of the global market and other countries have also been given. COVID-19 was declared a pandemic by WHO on March 11, 2020. A number of areas were affected by the pandemic. The business was one of the areas which faced severe problems and in order to help the firms solve those problems, a way of legal disruption was adopted to change a few commercial laws which helped in preventing the business. The research deals with those changes in laws of change in the commercial sector such as Insolvency Laws and Force Majeure clause. The research has aimed to answer various questions such as the effects of a pandemic on the commercial sector, amendments in the existing laws in order to maintain a balance and provide relief to people, and other measures taken by the government of India to save the business sector to some extent from going into complete insolvency and bankruptcy.
Chowdhury, Ragib, ‘Force Majeure v Specific Performance of Contract: Order Cancel Culture Impacting RMG Industry in Bangladesh’ (SSRN Scholarly Paper ID 3779978, 5 February 2021) Abstract: COVID-19 pandemic wreaked havoc and is still wreaking havoc. Brands and retailers have in this chaos invoked force majeure clauses in their contracts to cancel their pending orders. Bangladesh alone has a total of 6bn USD worth of orders unpaid with no payment made for already finished products or bought raw materials. Some companies are considering declaring involuntary bankruptcy as brands have used the order cancellation as a bargaining chip to force a 12% price reduction on already negotiated orders. This essay focuses on whether and to what extent the COVID-19 pandemic can amount to a force majeure event and how and to what extent specific performance of contract is available as a suitable remedy for the RMG in Bangladesh.
Cole, Michael J, ‘Don’t “Estop” Me Now: Estoppel, Government Contract Law and Sovereign Immunity If Congress Retroactively Repeals Public Service Loan Forgiveness’ (2021) 25 Lewis & Clark Law Review (forthcoming) Abstract: This Article considers whether federal student loan borrowers can bring successful legal challenges if Congress retroactively repeals the Public Service Loan Forgiveness (‘PSLF’) program. It addresses whether borrowers at litigation could rely on analogies to the promissory estoppel doctrine or assert equitable estoppel claims to challenge the repeal. In doing so, the Article explores the intersection of estoppel and government contract law with sovereign immunity theories in a way that has never been done before. This topic has been given very little attention in prior literature, so I aim to present its legal issues in a clear way while paying tribute to its nuance.The Article addresses the hurdles of sovereign immunity and the Sovereign Acts Doctrine, which the borrowers would encounter at litigation. It concludes that, despite likely overcoming these hurdles, in many cases, the plaintiff-borrowers’ government contract law claims would likely still fail to win on their merits. The Article similarly contends that most if not all equitable estoppel claims would likely fail before a court. The Article then offers an alternative proposal to Congress, which would avoid the issues that would arise at litigation, while solving the problems associated with the program and protecting the most vulnerable members of society negatively impacted by a repeal.
Cordero-Moss, Giuditta, ‘COVID-19 and Force Majeure Under the Vienna Convention on Sales and in Civil Law’ 13(2) New York Dispute Resolution Lawyer 50–52 Introduction: If COVID-19-related lockdown measures affected performance of a commercial contract, the party who could not perform its obligations will seek to avoid being held liable for breach of contract. Many commercial contracts contain a force majeure clause—a clause excusing a party’s non-performance if certain requirements are met. Contract clauses may vary from each other, but force majeure clauses often are quite standardised and inserted into contracts without adjustment to the particular circumstances. Therefore, with the proviso that each clause has to be individually read, it is possible to make some general considerations on force majeure clauses in the COVID-19 emergency. Failing a force majeure clause, the applicable law will determine whether the affected party is excused or whether it is in breach of contract. Contracts are subject to the law chosen by the parties. Failing choice by the parties, the applicable law is determined by the court’s conflict rules. In case of arbitration, the applicable arbitration rules and arbitration law will determine how the arbitral tribunal is to select the governing law. Statutory rules may contain various nuances from country to country. However, within the same legal family, there is a common basis. Below follow some general considerations on the applicability, in the COVID-19 emergency, of force majeure clauses, as well as of corresponding principles contained in the civil law (exemplified here by the laws of France, Germany, Italy and Norway), and in the 1980 Vienna Convention on Contracts for the International Sale of Goods (CISG)—which applies (unless the parties agreed otherwise) to sales contracts between parties belonging to 93 states, including the US and the four countries discussed here.
da Costa Afonso, Ana Isabel, ‘The Juridical Impact of COVID-19 in Portuguese Tenancy Contract Law’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: In response to the public health emergency derived from the COVID-19 disease, Portugal opted for a relatively strict lockdown. Most business activities were suspended and citizens were put under an obligation of confinement. This has created serious disruptions in people’s life and professional activities. In this paper we will address the specific measures the Portuguese legislator put into force to solve the problems aroused in tenancy contracts, namely, the adjournment of the obligation to pay rent and the suspension of eviction’s effects. Since the legislative measures do not have a general scope that could comprehend all of the tenancy contracts and provide only for a limited and very specific set of solutions, we believe that it is necessary to turn to other legal provisions of a more general approach in order to give an adequate response to the problems encountered in tenancy contracts as a consequence of the pandemic.
Costa Moura, Ines, Valeria Wong and Joao Nuno Riquito, ‘Macao: Impact of the Coronavirus in Ongoing Public Contracts’ [2020] (Summer) International Financial Law Review 121–123 Abstract: Discusses negotiations under the law of Macao to modify public procurement contracts which can no longer be performed as originally agreed because of the coronavirus pandemic.
Courtney, Wayne, ‘Contracts in the Time of COVID-19: Common Law and Statutory Solutions in Singapore’ in Normann Witzleb (ed), Contract Law in Changing Times (Routledge, 2022) Abstract: This Chapter examines the doctrine of frustration in Singaporean law and its application to contracts affected by the COVID-19 pandemic. After discussing the common law approach to pandemic situations in general, the Chapter critiques a recent Singaporean case which held that a ‘lease’ of premises was frustrated by circumstances resulting from the pandemic in Singapore. The Chapter then moves from the common law to statute. It considers the COVID-19 (Temporary Measures) Act 2020, which was introduced by the Singaporean government in April 2020 in response to the pandemic. The Act operates in tandem with the common law doctrine of frustration but provides a more targeted and nuanced way of dealing with changes in circumstances that affect contracts.
Dacoronia, Eugenia, ‘Coronavirus and Its Impact on Contracts in Greece’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: To face COVID-19, this current, exceptional, and unforeseeable pandemic, the extraordinary procedure of enacting Acts of Legislative Content was followed in Greece, a procedure provided by the Greek Constitution in exceptional circumstances. Accordingly, as of the 25th of February 2020 till the 1st of May 2020, nine Acts of Legislative Content have been issued. They have been ratified by law and have been followed by a considerable number of ministerial decisions, necessary for their implementation. Said acts contain provisions imposing measures for the prevention and limitation of the spread of COVID-19, including the lockdown of enterprises for a certain period as well as provisions for the regulation of such lockdowns to specific contracts. The purpose of the present contribution is to shortly present these provisions as well as the provisions of the Greek Civil Code which apply when events of force majeure, such as the pandemic of the COVID-19, occur.
Dadush, Sarah, ‘Prosocial Contracts: Making Relational Contracts More Relational’ (2022) 85(2) Law and Contemporary Problems (forthcoming) Abstract: The COVID pandemic exposed the selfishness with which fashion brands deal with their overseas suppliers. When it hit, many brands simply abandoned their contracts, without giving notice to suppliers, paying for completed—even shipped—orders, and without considering the impacts of cancelation on workers. The pandemic exposed but did not create the extractive relational dynamics in the apparel sector; such dynamics existed long before anyone had heard of COVID-19. Given that the ‘real deal’ of international supply contracting tends to be excessively buyer-friendly, relational contract theorists likely would have correctly predicted that a pandemic-like event would lead to widespread contract abandonment by buyers. However, relational contract theory has little to say about how to improve the fairness of the relational dynamics at play, particularly with respect to non-parties. This Essay seeks to take that next analytical step. It is generally understood that contracts are relational, not just transactional. They both reflect and inform the dynamics between the parties. But contracts’ ‘relational powers’ extend beyond the parties to encompass relationships with workers and their communities (people and planet). These groups can be understood as ‘contract stakeholders,’ even if they have no rights under the contract. As such, contracts contain more than the terms of the deal. They contain the terms of (several) relationships. They express and enshrine relational values. They can, therefore, be upgraded to enshrine fairer, more prosocial relational values that do a better job of ensuring positive social performance. This Essay explains why companies should seriously consider upgrading to ‘prosocial contracts’ not only because it is the right thing to do, but because it could help reduce companies’ legal, financial, and reputational risk and support compliance with new human rights due diligence legislation coming out of Europe. Drawing on the United Nations Guiding Principles for Business and Human Rights and a set of model contract clauses developed by an ABA working group, this Essay offers a practical framework for prosocial, shared-responsibility contracting whereby both parties assume responsibility for the social performance of their contract.
Dagan, Hanoch and Ohad Somech, ‘When Contract’s Basic Assumptions Fail: From Rose 2d to COVID-19’ (SSRN Scholarly Paper No ID 3605411, 19 May 2020) Abstract: This Article explores the normative foundations of the rules governing mutual mistake, impossibility, impracticability, and frustration and studies their doctrinal implications. These familiar doctrines, which make contracts voidable or excusable whenever they are grounded on a shared basic assumption that failed, puzzle commentators and courts. We claim that the key to properly understanding their role and interpret their doctrinal elements lies in appreciating the core principles of a genuinely liberal – that is: autonomy-enhancing – contract law. The rules that delineate the scope of these doctrines are guided by liberal contract’s commitment to ensure that promisors’ future selves are not unacceptably encumbered. The rules that regulate these doctrines, in turn, follow liberal contract’s principles of proactive facilitation and relational justice. Together, these rules exemplify both the power of the liberal foundation of modern contract law and the subtlety of its doctrinal workings.
Delfino, Rossella, ‘European Union Legislation and Actions’ (2020) 16(2) European Review of Contract Law 317–322 Abstract: Reviews contract-related EU law developments from January to March 2020, concerning: general contract law; consumer law; access to justice; data protection; financial services; public procurement; intellectual and industrial property; the European Parliament’s contract law initiative; and guidelines issued by the European Commission for the interpretation of EU law on passengers’ rights in relation to travel disrupted by the COVID-19 pandemic.
Dhingra, Jayems, ‘Force Majeure Event Clauses: A Risk Sharing Strategy in Charterparty for Offshore E & P Rigs and Shipbuilding Contracts’ (2012) 18 International Congress of Maritime Arbitrators 392–405 Abstract: This article was first published in the ICMA Proceedings 2012, and is being revisited in context of ongoing pandemic to demonstrate that the principle of Force Majeure remains unchanged for Offshore & Marine Industry. The question in the minds of every enterprise engaged in long term Oil & Gas industry contracts, ‘Is COVID-19 Pandemic a Force Majeure Event?’ Who decides it and whether it is provided in the contract? Contracts are considered as the sole governing mechanism or agreed legal authority for governing relationships between the parties, under the principle of pacta sunt servanda or sanctity of contracts. Thus, contracts once executed cannot be changed due to post-contract events, except by an agreement between the parties. Therefore, if a pandemic like COVID-19 is not an identified event of an FME clause, then the current crisis raises serious questions and shakes the jurisprudence of international contract laws. Force Majeure Events (‘FME’) a French term, represents Unknown, Unprecedented, Unexpected and Unavoidable events, having a negative impact on obligations and responsibilities under the contracts between the parties. In Chinese Contracts Law, it is noted that ‘force majeure means any objective circumstances which are unforeseeable, unavoidable and insurmountable.’ In Common Law jurisdiction there is no specific definition of force majeure but is interpreted from the clauses provided in a contract and arguments based on the doctrine of frustration. The frustration may or may not be the direct outcome of a force majeure event. In conclusion, the article demonstrates that FME Clause is a risk sharing strategy between the parties to a contract and not an act of God.
Dinar, I Gusti Agung Ayu Gita Pritayanti and I Nyoman Putu Budiartha, ‘A Comprehensive Force Majeure Model Clause in Corporate Transactions in Indonesia’ (2020) 3(2) Sociological Jurisprudence Journal 138–144 Abstract: Force majeure clause is presented in various models, from the simple to the complex ones that contain comprehensive descriptions, provisions, and notifications set out in an agreement with the details of the consequences of force majeure events. Force majeure clause serves as a complementary core clause and a renegotiating tool for the parties in the case of any event occurring beyond their reasonable control, which is important enough not to be overlooked by business actors. The Covid-19 pandemic which is currently ongoing worldwide, which has been declared as a global pandemic by World Health Organization (WHO) on 11 March 2020, has had a huge impact on the social life and the world economy which is very unsettling for business people, banks, and the society in general. The research questions investigated in this study are: (i) What are the factors causing failures in the performance of contractual obligations? (ii) What is a comprehensive force majeure model clause for corporate transactions in Indonesia? This study employs the normative legal research method. A normative legal research is guided by the characteristics of the object of the research, yet remains limited by the expected outcome of the norms initially established. The theories applied in investigating the problems in this research are the will theory (wilstheorie), trust theory (vertrouwensttheorie), and statement theory (verklaringstheori). In this study, will be identified a comprehensive force majeure clause enables the party who experiences a force majeure event to waive some provisions in the contract agreement.
Dubey, Maitreyee and Shikha Dimri, ‘Effect of Pandemic on Performance of Contracts and Remedies to the Cases of Breach: Looking into Legal Responses’ (2021) 5(S3) Linguistics and Culture Review 1231-1240 Abstract: There would hardly be any walk of life which has gone unaffected by the Covid-19 pandemic. It’s effect of the performance of contracts has also attracted legal questions and practical balancing of interests. In deciding whether a sum stipulated to be paid in case of breach of contract is liquidated damages or penalty to secure performance of the contract, intention of party is an important factor in determining but not always controlling one. Substantially, remedies are given by actions in cases of performance of contracts. The nature of the contract determines the kind of remedies. The article demonstrates the structure of damages, penalty-default theory as derived from Hadley v. Baxendale. It also analyses the effects brought in by the Covid-19 pandemic over the award of damages. By this article, the authors aim to analyze the two most crucial aspects of the Indian Contract Act ie. Performance, frustration and award of damages. The article attempts to scrutinize the dimensions and ways in which these words can be interpreted and applied. In this paper, the author will rely on critical and comparative analysis. For certain empirical demands of the topic, already published data and information will be relied on and acknowledged.
Ekhator, Ekhorutomwen Gabriel, Andrew Ogiribo and Samuel Iyobosa Ebughe, ‘The Impact of Pandemics Such as the COVID-19 and Other Unforeseeable Events on Leases: Force Majeure or Frustration?’ (SSRN Scholarly Paper No ID 3616831, 2 June 2020) Abstract: In a world of unforeseen occurrences and unpremeditated events, anything can happen. However, following the security consciousness of mankind, parties to a leasehold contract are usually mentally and obligatorily inclined to secure their contract thereby putting measures in place to oblige each other to perform his part in the contract. One of these efficacious measures that have been adopted by parties to a leasehold contract is the making and signing of lease agreements. Many a times, the landlord and his tenant carefully and with the help of an astute lawyer, draft a lease agreement to outline their obligations under the contract. While doing this they are careful enough to input when and how the contract should be put to an end such as including a force majeure clause to the lease agreement. Sadly sometimes, unforeseen occurrences make the contract impossible to carry out by either of the parties. In a bid to put an end to the contract, most times the tenant, resort to the store room of weapons which is the lease agreement, seeking clauses that he may use against the landlord to put an end to their contract. Unfortunately, he does not find any useful because the events he leans upon was never included in the lease agreement nor was it part of the force majeure clause. The recent outbreak of the 2019 Novel Corona virus (‘COVID-19’) in China and its widespread over the world has caused many business activities to come screeching to a halt, as many countries issue orders and advisories for residents to stay at home and for any nonessential business activities to be performed remotely. During this period of COVID-19, many businesses and tenants such as students do not have access to their premises, and this has called for a legal answer to the effect of the stay at home order on the lease. This article seeks to answer the questions; do pandemics such as the COVID-19 give rise to a frustrating event or force majeure? What position should the parties take when other unforeseen or unpremeditated events such as war, government restrictions, strikes, natural disasters, and acts of God make the contract impossible of being performed? The article also examines the position of landlord and tenant in the country during this ‘lockdown’ order.
Elsaman, R and M Elsaman, ‘A Legal Perspective on Covid-19 in Egypt: The Impact on Civil and Administrative Contracts’ (2021) 18(2) Transnational Dispute Management (TDM) [unpaginated] Abstract: Governments have started to take actions to mitigate the impact of the COVID-19 outbreak worldwide. Such measures have resulted in the closure or at least interruption of businesses since it has become challenging for them to meet their contractual obligations. A frequently asked question is whether the Coronavirus outbreak could excuse contracting parties from performing their contractual obligations. Within this context, the legal practice usually triggers the application of two main doctrines, namely: force majeure and imprévision that find their origins in the French law. While the first usually results in suspending the contractual obligations due to the impossibility of performance, the second often leads to alleviating such obligations. This Article explains the challenges facing the performance of contracts in Egypt in light of the global pandemic of COVID-19. The Article briefly provides the reader with an initial understanding of the main features of the Egyptian legal system. In particular, this Article highlights the differences between civil and administrative contracts and the role of the Egyptian judiciary in forming each type of contracts, to facilitate the understanding of the legal implications of the Coronavirus outbreak within this context. The Article then explains the two common doctrines that could be used to cancel, suspend, or amend both civil and administrative contracts in light of the pandemic; force majeure and imprévision. The Article distinguishes between each of the two theories and their legal consequences when applied to civil and administrative contracts. The Article also explains the other doctrines applied by the Egyptian judiciary, particularly in administrative contracts, which are the Fait Du Prince Theory; and the Material Adverse Events Theory. The Article concludes with analyzing the legal implications of Covid-19 in light of the presented legal doctrines in both civil and commercial contracts versus administrative contracts in Egypt.
Erikson, Merle and Irene Kull, ‘Implications of Alteration of Balance of Contractual Obligations Due to COVID-19 on Employment and Civil Law Contract under Estonian Law’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: Following the spread of COVID-19 to Estonia in the beginning of March 2020, the Government declared an emergency situation from 12th March 2020. For officially and voluntarily closed businesses, staff reductions, reduction of remuneration or working load, the amendment or termination of the employment and other contracts for work or services became one of the legal measures in preventing larger damages. The aim of the paper is to answer the question under what conditions the affected party may demand amendment of an employment contract and civil law contract – on the example of a contract of mandate – in order to restore the original balance of the obligations, and terminate the contract, in order to assess the level of protection of parties interests. The comparison of an employment contract and a contract of mandate is based on legal provisions of Estonian law regulating the legal consequences of change or circumstances, which leads to the alteration of balance of contractual obligations in an emergency situation, like it was caused by COVID-19.
Evseeva, Ludmila A et al, ‘Problems of Practical Application of Legal Norms Containing Accessory Obligations in the Legislation of the Russian Federation in the Conditions of the COVID-19 Pandemic’ in Yakhya G Buchaev et al (eds), Challenges of the Modern Economy: Digital Technologies, Problems, and Focus Areas of the Sustainable Development of Country and Regions (Springer, 2023) 145–148 Abstract: The paper aims to reveal the problems of the practical application of the rules of law containing accessory obligations in the legislation of the Russian Federation, especially in conditions of the COVID-19 pandemic, when business entities, including cooperative entities, are faced with the impossibility of performance or proper performance of contracts. The research methodology consists of the analysis of different approaches to the concept of accessory obligations, the study of gaps in the legislation, and the analysis of judicial practice in resolving disputes related to accessory obligations. Accessory obligations are present in the whole variety of civil law transactions, including those carried out in the area of cooperation. Clear identification of accessory obligation will allow us to properly assess the legitimacy of inclusion of a certain obligation in the transaction. Moreover, it will allow us to determine the moment of emergence, change, and termination of accessory obligations, as well as the relevance and proportionality of the claims asserted by the creditor in case of violation of the accessory obligation. The authors conclude that the problems of the practical application of the rules of law governing accessory obligations, including in the field of cooperation, currently emerge due to unjustified imperative application of civil accessory structures on alien to them areas. This is primarily associated with the restrictive and prohibitive measures applied by the government aimed at preventing the spread of COVID-19. The desire to secure the rights and interests of the participants of legal relations through these structures, in fact, turns out to create an additional financial burden on the end-users of goods, works, and services offered in cooperation.
Fairgrieve, Duncan and Nicole Langlois, ‘Frustration and Hardship in Commercial Contracts: A Comparative Law Perspective’ (2020) 24(2) Jersey and Guernsey Law Review 142–166 Abstract: The common law doctrine of frustration and the civil law doctrine of force majeure are both doctrines of respectable antiquity that can trace their origins back to Roman law. The recent Coronavirus pandemic (and its unprecedented impact on business) has focused attention on the way in which these doctrines have been developed by courts in different jurisdictions and prompted debate as to whether such developments now strike the right balance between legal certainty on the one hand, and fairness to the contracting parties on the other. Given Jersey’s unique status as a ‘mixed’ civil and common law jurisdiction, a comparison of English law and French law in this area offers some interesting insights into the likely scope of a modern Jersey customary law doctrine of force majeure.
Furrer, Andreas, Angelika Layr and Jerimias Wartmann, ‘COVID-19: Impossibility and Force Majeure under Swiss and Austrian Contract Laws’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The COVID-19 pandemic and the enactment of legislation to slow the spread of the virus are affecting large parts of the economy, including contractual relationships. This paper examines the legal situation and possible remedies, according to Swiss and Austrian general contract law. Both jurisdictions allow for contractual force majeure clauses to allocate risks in connection with unforeseeable or changing circumstances. As there is no statutory definition of force majeure, the individual contracts need to be examined, and COVID-19-specific clauses for newly concluded contracts should be introduced. In the absence of a contractual agreement, the concepts of delay of performance or impossibility might be applicable for adaptation or termination of the contract. If the contractual equilibrium is severely disrupted by the changing circumstances, the doctrine of clausula rebus sic stantibus could apply.
Ganuza, Juan José, Fernando Gómez Pomar and Jerimias Wartmann, ‘Government Emergency Intervention in Private Contracts in Times of COVID-19: A User’s Guide’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The paper provides a preliminary analysis of the legal instruments that governments use to provide emergency regulation of contracts in the wake of the turmoil resulting from the COVID-19 pandemic. We identify the acute liquidity concern afflicting virtually all agents along the contractual chain as the most pressing problem. We then introduce some of the main criteria to understand and design response measures in the area of private contracts in times of emergency: (i) the systemic and urgent character of response measures; (ii) keeping things simple, minimizing ex ante controls and transaction costs; (iii) the urgency of preventing a chain reaction of defaults along contractual networks and the economy at large; (iv) the relational value of existing contracts and the ways to preserve it; (v) how tailor-made agreements in M&A and finance have means to cope with the impact of emergencies.
Gates, Laura, ‘Force Majeure, Vis Major, Impossibility, and Impracticability Under Ohio Law Before and After COVID-19’ (2021) 90(1) University of Cincinnati Law Review 283–306 Abstract: This Comment assesses the past, present, and future of force majeure, impossibility, impracticability, and related doctrines under Ohio law in light of COVID-19. Section II examines the history of these doctrines in Ohio courts, as well as the history of the COVID-19 pandemic and certain law and economics principles. Section III analyzes how Ohio courts likely would apply these doctrines and interpretations (as they currently exist) to cases involving breach of contract due to COVID-19, and also how they should apply these doctrines and interpretations.
German, Peter, ‘Coronavirus (COVID-19) and Force Majeure’ [2020] Lawyer (Online Edition) 1 Abstract: The article offers information on the impact of the coronavirus pandemic on the commercial activities around the world. It discusses the coronavirus outbreak and force majeure, along with information on the restrictions on travel and gatherings imposed by the government officials all over the globe. It mentions the steps taken by business to limit business travel and participation in meetings and social events.
Giaretta, Ben, ‘COVID-19 Force Majeure Notices Under English Law: What Comes Next?’ 13(2) New York Dispute Resolution Lawyer 47–49 Abstract: As well as terrible health impacts, the COVID-19 pandemic has caused extraordinary economic convulsion. A major part of that has been the disruption of the performance of contractual obligations, and this has led many contract parties to trigger, where they can, clauses that provide force majeure relief. The pandemic has created unusual dynamics in the operation of force majeure clauses. Where many previous disputes over such clauses concerned the threshold question of whether the relevant circumstances fell within the force majeure clause, there appears to have been near universal acceptance that the operation of such a clause is justified if the pandemic has affected a contract. On the other hand, the extended duration of the pandemic and the uncertainty over how the world will move to a postCOVID state has meant that other parts of force majeure clauses are being tested as never before. Yet the drafting of such clauses insofar as they relate to the period after the force majeure notice typically leaves much to be desired.
Givati, Yehonatan and Yotam Kaplan, ‘A New Theory of Impossibility, Impracticability, and Frustration’ (2022) Journal of Legal Studies (forthcoming) Abstract: Contract law offers three closely related excuse doctrines: impossibility, commercial impracticability, and frustration of purpose. These doctrines, which allow courts to release parties from their contractual obligations under extreme and unforeseeable circumstances, were central to contract disputes in the aftermath of the COVID-19 pandemic. Yet despite their importance, and despite decades of scholarly attention, these doctrines remain a puzzle, widely considered difficult to explain and justify. Existing economic theory sees contractual excuse doctrines as a risk-allocation mechanism; although highly influential, this standard theory leaves many questions unanswered. We offer a simple economic model explaining contractual excuse doctrines by focusing on avoidance investments, that is, investments by contractual parties designed to escape their obligations and wiggle their way out of the contract. We show that the proposed model offers a straightforward explanation to contractual excuse doctrines, illustrating their underlying logic, and accounting for the key patterns observed in court decisions.
Godwin, Andrew, ‘The Contractual Impact of COVID-19 on Corporate and Financial Transactions’ (2020) 48(2) Australian Business Law Review 116–125 Abstract: During the COVID-19 pandemic, the social isolation measures, the closure of borders and the restrictions on business activity (including the provision of goods and services in the ordinary course of business) have seriously disrupted private contractual arrangements between commercial parties on both a domestic and cross-border basis. This article provides a high-level overview of the contractual impact of COVID-19 on corporate and financial transactions in three areas: material adverse change clauses; force majeure clauses; and the doctrine of frustration. The analysis highlights both the complexities of these concepts and also the extent to which their operation is subject to the specific circumstances, even in the context of the COVID-19 pandemic.
Gomaa, Mohamed and Arushi Bhagotra, ‘The Execution of the International Public Contract during the COVID-19 Pandemic: A Comparative Perspective’, Globalex (November/December 2022) Abstract: After confirmed cases of COVID-19 had soared to over 118,000 worldwide with fatalities crossing the threshold of 4,291, the World Health Organization upgraded the COVID-19 outbreak from a ‘public health emergency of international concern’ to a ‘pandemic’ (hereinafter referred to as ‘the COVID-19 Pandemic’) on March 11, 2020. Different industries have been hit hard by the aggressive measures imposed by authorities worldwide and working from home is not an option for many types of labor. These measures have disrupted many businesses, supply chains, operations, and other contractual relationships. Therefore, many voices are calling for the necessity of declaring the COVID-19 Pandemic as a ‘Force Majeure’. Many questions arose about the impact of the COVID-19 Pandemic on contracts and legal agreements. Additionally, the legislator is responsible, on the one hand, to insert explicit provisions that can deal with those cases in the national legislation, and on the other hand, there is also a responsibility on the contractual parties to include in contracts some articles which could deal with disaster and Force Majeure cases, and other articles to define the rights and obligations of each party in these cases. In all cases, the political considerations and the circumstances surrounding each contract must be considered separately. Therefore, it becomes necessary to clarify the effect of the pandemic on the execution of the international administrative contract. Is it a Force Majeure? What are the rights of each party during the period of the pandemic?
Grey, Felicia A, ‘The English Law Doctrine of Frustration in the Context of the COVD-19 Pandemic’ (2024) 45(1) Business Law Review 31–33 Abstract: This paper examines the extent to which the onslaught of the COVID-19 pandemic has affected the formation and execution of contracts in the United Kingdom. Using the English Law doctrine of frustration, it assesses how far foreseeability plays a role in determining whether contracts are frustrated. It examines concepts such as illegality, impossibility and frustration of purpose as well as case law to see what arguments can be used to support or deny liability for contractual terms. It argues that in many ways, frustration is narrowly constructed. The COVID- 19 pandemic and its aftermath, however, will encourage more creativity as legal systems revisit their provisions to accommodate the changing dynamics of the international system.
Grimshaw, Carol, ‘Electronic Signatures: Across the Border to e-Signing?’ (2022) 96(8) Law Institute Journal 44–47 Abstract: E-signing became more commonplace during the COVID-19 pandemic but there are still jurisdictional issues to be aware of.
Grochowski, Mateusz, ‘Towards a Renaissance of Price Control in Contract Law?: Preliminary Observations on COVID-19 and Price Regulation on Consumer Market’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The text addresses the dilemma of retail price regulation on the consumer market in the economic realities triggered by the COVID-19 pandemic. The text discusses the reinvigoration of discussion over price control that ensued in numerous countries as a result of the rapid increase of prices of certain goods (such as medical products and every-day-use utensils). It attempts to preliminarily frame the underlying policy premises of price regulation triggered by the pandemic. It also seeks a more in-depth understanding of the rationale of price review in the extraordinary market conditions, as well as the general rules for allocation of tasks in this regard between public and private law. In so doing, the text focuses primarily on the EU consumer law and attempts to understand what concept of price control it rests on and to what extent it may provide a response to the price concerns in the outcome of COVID-19.
Gultom, Pardomuan and Rumainur, ‘Contract Renegotiation Due to the Covid-19 Pandemic from the Hardship Perspective’ (2022) 15(1) Indonesian Law Journal 79–99 Abstract: The Covid-19 pandemic is something that cannot be predicted beforehand when the agreement is in progress and the fact that the existence of the COVID-19 pandemic affects the implementation and fulfillment of obligations in the agreement. Force majeure and hardship are based on different ratios. The hardship clause is needed, for the reasons: it can be used as a basis for overcoming in case of problems or failure to contract (frustration), especially long-term contracts with a very high value. Specification this research is included in the category of legal research which is a descriptive specification analytical, which is a study that seeks to describe legal problems, the legal system, and review it or analyze it according to the needs of the research. The purpose of this study is to find the position of the possibility of using the principle of hardship in the contract law system in Indonesia.
Gyuris, Arpad, ‘Private Law Issues in Connection with the Covid-19 Pandemic’ (2021) 15(1) Fiat Iustitia 107–118 Abstract: In this paper I would like to discuss what changes and problems the Covid-19 epidemic has caused in private law, particularly in the field of contract law. The most important questions are, on one hand, how the state may have intervened in private law. There is a historical precedent fort his practice within each European legal system. On the other hand, how the contracting parties respond to the challenges posed by the epidemic. The third question is, for example, what solutions can be found in Hungarian private law to solve contractual problems. In examining these issues, I use certain provisions of European private law, as well as review the established case law. As a result of my paper, parties to a contract can gain insight into some of the legal issues surrounding the case and learn about possible solutions in Hungarian contract law.
Hamzah, Hamzah, ‘Civil Law Agreement and Its Implication on Regulation for Prevention of Corruption within Covid-19 Pandemic’ [2020] Journal of Social Studies Education Research (pre-published article) Abstract: The purpose of this study is to determine the social impact of the learning process of agreements and regulations in the Civil Law regarding the procurement of goods and services during the Covid-19 pandemic, its implications for preventing corruption in Indonesia. The research method used is normative using a theory-in-use approach. The results of the study found three crucial points. First, the law of goods and services agreements gives freedom to people who do not have restrictions in the code for that. The contract for the procurement of products and services during the Covid-19 pandemic was categorized as a relatively temporary force majeure so that it could renegotiate to rearrange the implementation schedule. Second, good faith is the key to success in resolving frustrating agreement problems to save the agreement to provide benefits and benefits to both parties. Third, in the end , civil law provides an essential lesson that in transactions based on good faith where there are values of decency , honesty , and fair wisdom is the prevention of con-uption in the procurement of goods. Good faith is the key to success in resolving frustrating agreement problems to save the agreement to provide benefits and benefits to both parties. And service in difficult times like today.
Harris, Lauren, ‘Frustration in Crisis: How the Spanish Doctrine of Rebus Sic Stantibus Can Inform a Post-Pandemic Reexamination of English Contract Law Approach to Hardship’ (2023) 26 Trinity College Law Review 38-59 Abstract: Faced with a common enemy, the world has watched a global chess game where social distancing, travel restrictions, and vaccinations attempted to checkmate the COVID-19 virus. Despite the exceptional nature of the measures that were created in this global defence, their societal impact has crystallised. The transformative effect of the crisis has also reached the legal realm, prompting some to conclude that 'in law, things will never be the same as before'. Through a Spanish comparative lens, this article will question this in relation to the English cultural approach to contractual hardship. The first section will introduce and compare the doctrines of rebus sic stantibus ('rebus') and frustration, and, in doing so, critique the latter for its inadequacy in the current legal climate. In section two, this comparison will go deeper to analyse the different cultural contractual principles that define these approaches. In doing so, English contract law will be re-examined, and its potential to embrace a hardship doctrine will be hypothesised. This comparative exploration will be developed under three overlapping paradigms: the sanctity of freedom of contract, the economics of renegotiation, and finally, the moral underpinnings of good faith.
Heminway, Joan MacLeod, ‘The Potential Legal Value of Relational Contracts in a Time of Crisis or Uncertainty’ (2022) 85(2) Law and Contemporary Problems 131–151 Abstract: The COVID-19 pandemic and attendant socioeconomic transformations have resulted in significant dislocations in the lives of individuals and organizations. Agreements—especially those relating to supply chain arrangements— have garnered much attention and undergone significant review. Business contracts and the exchanges they embody have been foregone, revised, delayed, and terminated; performance under business contracts has been modified voluntarily and involuntarily. Some of these actions and outcomes have been the subject of legal claims brought by one contracting party or another in courts or administrative tribunals. Legal counsel involved in dispute resolution, drafting, compliance, and the provision of other business contract advisory services have focused on important terms—including force majeure and material adverse change clauses—in contracts involving ongoing commercial relationships (for example, supply chain agreements) or delayed closings (for example, business combination agreements). This has garnered significant attention in the business, legal, and popular press. However, there has been less consideration of how the pandemic and other crises might catalyze a more fundamental review of contract design and drafting principles and practices.
Hillman, Robert, ‘Health Crises and the Limited Role of Contract Law’ (2022) 85(2) Law and Contemporary Problems 19–31 Abstract: The COVID-19 pandemic of 2020-21 has focused our attention on contract law’s response when unanticipated circumstances make performance impractical or frustrated or performance would cause harm to the public. The pandemic has disrupted contracts between landlord and tenant, employer and employee, universities and students, to name a few, but has contract law provided a clear path to determine who must bear the risk of loss of such events? The purpose of this essay is to suggest that current contract law’s many and varied, sometimes even contradictory, rules and principles relevant to shaping a response to a health crisis can offer only limited guidance to courts and lawyers in the challenging cases. Further, contract law’s uncertainty in these cases reinforces the more general perspective that judicial decisions in contract cases (and more generally) often depend, not on doctrine, but on a pragmatic analyses of the facts, policies and equities. Although this taste of realism is not a revelation, in fact, there may be no better example of the limits of contract law, as administered by courts, than its response to contract disputes during a public health crisis.Part I of this essay inventories the plethora of contract law issues raised when a health crisis makes performance problematic and when no federal or state regulation is in place to resolve the dispute. Part II assesses what such circumstances reveal about the nature of contract law: First, contract law’s set of responses reinforce legal theorists who have long argued that, at least in hard cases, contract law is subjective and uncertain. Second, contract law’s main contribution in such cases is to identify the questions that should be asked and to provide a roadmap to follow. Part III, the Conclusion, offers a word about post-pandemic contract law.
Hisham, Nik Hajar binti Nik, ‘Frustrated Contracts by Covid-19 Impacts’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 99–105 Jurisdiction: Malaysia
Abstract: This paper aims to identify the elements and rules to invoke the doctrine of frustration in contracts affected by Covid-19 Restrictions. Another objective is to determine the validity of invoking a force majeure clause as a frustrated event to discharge parties from their obligations. Next, is to examine the available remedies as based on the Contracts Act 1950 and the recently enforced Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) ACT 2020. The problem statement is whether Covid-19 Restrictions is an unforeseeable event that renders the contract to be wholly impossible to perform? The legal methodology used in this study is the Legal Doctrinal Approach derived from legal sources such as case laws and statutes and other legal sources. A non-doctrinal approach is also applied to observe the cause and effect of Covid-19 Restrictions to the performance of contracts. This study will provide the relevant rules and satisfactory conditions in invoking the doctrine of frustration to an unforeseeable event such as Covid-19 Restrictions. This study will also illustrate the possible conditions in applying Covid-19 Restrictions and other events as an unforeseeable event applicable to Force Majeure Clauses. The remedies from legislation to frustrated contracts as provided in the Contracts Act 1950 and the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) ACT 2020 will be analysed to adduce its’ applicability to frustrated contracts by virtue of Covid-19 Restrictions. The International Guidelines for force majeure clauses will be examined and extracted to determine its validity to be applied in Covid-19 Restrictions.
Hoekstra, Johanna, ‘Regulating International Contracts in a Pandemic: Application of the Lex Mercatoria and Transnational Commercial Law’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 117–125 Abstract: The Covid-19 pandemic is a significant disruption for the performance of contractual obligations. Contracts often contain a force majeure clause that lays out the circumstances under which a contract can be terminated or suspended. However, not all contracts contain such a clause, or the clause might not cover the current situation. In the absence of a force majeure or similar type clause the applicable law fills that gap. This paper concentrates on international commercial law contracts and transnational commercial law; it specifically focuses on the Convention for the International Sale of Goods,1 the UNIDROIT Principles of International Commercial Contracts,2 and the principles of the lex mercatoria. This paper analyses how these instruments could be applied if the contractual parties do not meet their obligations because of the Covid-19 pandemic.
Hoffman, David A and Cathy Hwang, ‘The Social Cost of Contract’ (2021) 121(3) Columbia Law Review 979–1016 Abstract: When private parties perform contracts, the public bears some of the costs. But what happens when society confronts unexpected contractual risks? During the COVID-19 pandemic, completing particular contracts--such as following through with weddings, conferences, and other large gatherings--will greatly increase the risk of rapidly spreading disease. A close reading of past cases illustrates that when social hazards sharply increase after formation, courts have sometimes rejected, reformed, and reinterpreted contracts so that parties who breach to reduce external harms are not left holding the bag. We describe these cases as a sort of contractual anticanon: where social, and not private, ends are the focus of contract judges. This Essay builds on that observation in making two contributions. Theoretically, it characterizes contracts as bargains that always implicitly involve the public. Law has three tools at hand to govern contract’s social cost: delineating subject matter about which parties can bargain, interacting with parties as a regulator, and, finally, interpreting and reforming in court. Post hoc consideration of social costs is the least well known, and most unsettled, mode of governing contract externalities. We ground that technique in its history as a specialized application of the law of contract public policy. Practically, this Essay advises parties negotiating whether and how to perform to consider the public’s health, since history teaches that, at least some of the time, courts will too.
Hondius, Ewoud, ‘Corona, Millennium and the Financial Crisis’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: Corona may be a new issue, but epidemics are not. Legal issues related to epidemics are of all times. Two disasters which struck in recent times were the millennium bug and the financial crisis. This paper deals with the question how Dutch law has coped with the corona crisis. More in particular it addresses how the 1992 Civil Code’s new provision on unforeseen circumstances has been (non) applied in practice. The paper then turns to two international developments: the work of the International Chamber of Commerce – see also the paper by Denis Philippe in this volume – and the work of the Common core of European private law (Trento) project.
Irvine, Matthew, ‘Force Majeure Clauses and the Coronavirus’ 31(5) Entertainment Law Review 155–157 Abstract: Reviews the debate over whether contractual disruptions caused by the coronavirus pandemic are covered by force majeure clauses. Examines the general position, the tradition of interpreting such clauses narrowly, and the factors likely to be considered by the courts, including the natural meaning of the relevant words. Sets out practical guidance on drafting force majeure clauses, and whether a widely-drawn catch-all provision is advisable.
Iyer, Abhishek, ‘Impact of COVID-19 on Contracts: Force Majeure as a Tool to Save from Frustration?’ [2020] Corporate Law Journal (forthcoming) Jurisdiction: India
Abstract: COVID-19 has taken the commercial world by storm as its rising spread has led to global border closure, halt in trade and commerce which has further led to a massive disruption of the existing supply chain. Owing to these events, commercial contracts have been affected significantly whereby the performance of obligations is hit by impossibility. Through this paper, the author delves into the Indian legal scenario specifically to analyse the remedies for a contract that is suffering from nonperformance due to the outbreak of COVID-19. The author scrutinizes on the concept of Contingent contracts and, ‘Force Majeure’ as a tool to save contracts from frustrating under The Indian Contract Act, 1872. Lastly, this paper also discusses in brief Government contracts in the current scenario apart from the intricacies involved in invoking Force Majeure as a valid excuse of non-performance, for COVID-19 being considered as a Global Pandemic beyond human control.
Januarita, Ratna and Yeti Sumiyati, ‘Legal Risk Management: Can the COVID-19 Pandemic Be Included as a Force Majeure Clause in a Contract?’ [2020] International Journal of Law and Management (advance article, published 13 November 2020) Abstract: Purpose This study aims to investigate the legal consequences of the use of force majeure (FM) clause in a contract related to the prospect of business sustainability. In addition, this paper also examines the legal risk perspective toward the interpretation of FM clauses in contracts that incorporate the coronavirus disease 2019 (COVID-19) pandemic situation. Design/methodology/approach The research design in this paper uses the normative juridical method, which means that it is carried out with library research on secondary data in the field of law, in the form of primary and secondary legal materials and tertiary legal materials. Primary legal materials are in the form of regulations relating to the variable topics of this paper, namely, FM, COVID-19, contracts and legal risk management (LRM). Findings The study found that studies of FM are still limited in terms of the aspects of contract sustainability, and none has reviewed them using the LRM paradigm. Research limitations/implications Given the fact that this pandemic is still ongoing and uncertain, the extent to which the broadening of the interpretation of FM in the contract by the parties and how much the designs offered above can help the parties, will greatly depend on the commitment of the parties. However, if the orientation is to maintain a long-term business relationship, it still fulfills the essence of a win–win solution that will greatly assist the parties in determining the continuity of the contract. Practical implications The results of this study are expected to provide benefit to the parties in an agreement affected by the COVID-19 outbreak and by regulators who wish to provide a legal basis in contract law. Social implications Long-term business relationships will create sound, peaceful and conducive environment for modern business. This kind of situation will sustain the business as expected. Originality/value This study concludes that the interpretation of FM can be extended to accommodate the interests of the parties to the contract by considering several principles in contract law and other relevant clauses. In addition, this study also produced four essential designs for LRM oriented to long-term business relationships in a win–win solution.
Jasani, Azmina, ‘Force Majeure Clause Nullifies Consignment Agreement’ (2021) 160(4) Trusts & Estates 64–68 Abstract: The COVID-19 pandemic has affected the art world in many ways, including making it difficult, if not impossible, for art businesses to meet their contractual obligations. To protect their bargaining position, many auction houses include a force majeure provision in their agreements which, depending on its phrasing, may allow one or both parties to terminate the agreement upon the occurrence of a force majeure event as defined within the agreement. Does COVID-19 constitute a ‘natural disaster’?
Jayabalan, Sheela, ‘The Legality of Doctrine of Frustration in the Realm of Covid-19 Pandemic’ (2020) 3(2) Sociological Jurisprudence Journal 84–90 Abstract: The outbreak of the novel coronavirus (‘COVID-19-Outbreak’) has a potential impact in the performance of a contract. If a contract does not contain a force majeure clause, a contracting party may look to the common law doctrine of frustration to relieve it from its obligations. Unlike force majeure clauses which focuses on the parties’ express intention on how to deal with supervening events, frustration is implied by law and thus would only be considered in the absence of an express force majeure clause. In Malaysia, the doctrine of frustration is codified in section 57(2) of the Contracts Act 1957. A doctrinal analogy of the doctrine of frustration and section 57 of the Contracts Act 1950 indicates a pandemic such as the covid-19 would not frustrate a contract. Force majeure clause should be used as a protective tool to prevent losses to the contracting parties or alternatively the Principles of European Contract Law and the Unidroit Principles that make provisions for hardship as well as force majeure should be implemented.
Jayasekera, BKM and YP Wijerathna, ‘Legal Implications of COVID-19: Force Majeure and Contractual Obligations in International Sale of Goods’ Abstract: The year 2020 has been challenging for businesses worldwide with COVID-19 leading to the disruption of the global economy. The unprecedented circumstances led by this pandemic, inter alia, raise concerns pertinent to the liability for failure to fulfil contractual obligations in international commercial contracts due to COVID-19. United Nations Convention on Contracts for the International Sale of Goods (CISG or Vienna Convention) performs a significant role in the spectrum of international sales. Article 79 of the CISG reflects the legal concept of force majeure, which provides a defence for non-performance of contractual obligations in certain enumerated circumstances beyond the parties’ control. In this respect, the current research, through the doctrinal research methodology, reviews the application of force majeure to grant relief for non-performance of contractual obligations due to COVID-19 where a contract is governed by the CISG. The study concludes that COVID-19 is likely to be considered an impediment beyond the control of the parties under Article 79 of the CISG even though the likelihood of successful invocation of the article will vary depending on the circumstances of each case.
Jentsch, Valentin, ‘Contracts and the Coronavirus Crisis: Emergency Policy Responses Between Preservation and Disruption’ in Klaus Mathis and Avishalom Tor (eds), Law and Economics of the Coronavirus Crisis (Springer, 2022) 105–122 Abstract: As of late spring 2021, three major Covid-19 waves have hit Europe. These waives were accompanied by three generations of emergency policy responses taken by national and supranational governments, consisting of containment and closure measures, economic measures, and health measures. Against this backdrop, the coronavirus crisis creates a wide variety of contract-specific problems. One key strategy to solve contract-specific problems during the coronavirus crisis is the preservation of a contract. The other key strategy to solve contract-specific problems during the coronavirus crisis is the disruption of a contract, in one way or another. Using a legal theory and law and economics approach, this article deals with the research question, whether emergency policy responses will pay off or cause even more harm in the long term. The article further aims to assess the impact of different generations of emergency policy responses on contract law in order to inform the ongoing debate in law and politics. This is important because any intervention in a functioning system increases complexity and creates a new equilibrium that may be inferior.
Jentsch, Valentin, ‘The Law of Contracts in the Age of the Coronavirus Pandemic: Is the Statutory Risk Allocation Pursuant to the Swiss Code of Obligations Still Adequate?’ (EUI Department of Law Research Paper No 2020/09, 2020) Abstract: Pacta sunt servanda – agreements must be kept. This general principle of civil law requires that both or all parties to commercial contracts are expected to meet their contractual obligations, at least as long as performance is still possible and circumstances do not change fundamentally, thereby ensuring the efficacy and the efficiency of our system of private ordering. In March 2020, however, the rapidly spreading coronavirus outbreak, which was eventually declared a pandemic by the World Health Organization, all of a sudden changed everyday life all over Europe from one day to another. Airlines were cancelling flights, companies were closed down, and consumers were rapidly changing their buying behavior. In addition, many European countries, including Switzerland, enacted emergency decrees, according to which national borders were closed, cities were sealed off, major events with more than a certain number of people were banned, and teaching in schools and universities was suspended, at least for some time. There is no need to say that this situation caused considerable difficulties for all participants in the economy, business enterprises and consumers alike. Against this backdrop, I elaborate on both the remedies for a breach of contract provided by the legislator as well as the adaption and the termination of contracts by a competent judge in order to address the question, whether the statutory risk allocation pursuant to the Swiss Code of Obligations is still adequate or not. A functional and doctrinal approach is used to unfold and analyze this timeless question from a contemporary perspective.
Jentsch, Valentin, ‘On the Need for Codification in European Contract Law: Adaption or Termination of Contractual Obligations in Times of Pandemic’ (EUI Law Working Paper No 2021/08, European University Institute, 2021) Abstract: The sanctity of contracts, a guiding principle of contract law in civil law systems, requires that both or all contracting parties be expected to meet their contractual obligations, thereby ensuring efficacy and efficiency of private ordering. Under extraordinary circumstances, however, legal systems provide for mechanisms, which may excuse contractual performance or lead to adaption or termination of contractual obligations. Since the coronavirus pandemic, these mechanisms have clearly gained traction. Drawing on five important civil law jurisdictions (Germany, Austria, Switzerland, France, Italy), this article elaborates on adaption or termination of contractual obligations. The article aims to address the fundamental question, whether institutions on adaption or termination still serve their purpose in times of pandemic or whether and to what extent a codification of such institutions is needed in European Contract Law. A functional and comparative approach is used to unfold and analyse this timeless question from a contemporary perspective.
Jentsch, Valentin, ‘On the Need for Unification in European Contract Law: Excuses of Contractual Performance and Remedies for Breach of Contract in Times of Pandemic’ (EUI Law Working Paper No 2021/07, European University Institute, 2021) Abstract: The sanctity of contracts, a guiding principle of contract law in civil law systems, requires that both or all contracting parties be expected to meet their contractual obligations, thereby ensuring efficacy and efficiency of private ordering. Under extraordinary circumstances, however, legal systems provide for mechanisms, which may excuse contractual performance or lead to adaption or termination of contractual obligations. Since the coronavirus pandemic, these mechanisms have clearly gained traction. Drawing on five important civil law jurisdictions (Germany, Austria, Switzerland, France, Italy), this article elaborates on excuses of contractual performance and remedies for breach of contract. The article aims to address the fundamental question, whether these excuses and remedies still serve their purpose in times of pandemic or whether and to what extent a uniform breach of contract action is needed in European Contract Law. A functional and comparative approach is used to unfold and analyse this timeless question from a contemporary perspective.
Jerez, Carmen, María Kubica and Albert Ruda, ‘Force Majeure and Hardship in the Corona Crisis: Some Contract Law Reflections on ELI Principle No 13’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The Principles for the Covid-19 Crisis, drafted by the European Law Institute in May 2020, provide a set of criteria that deserve an analysis within the framework of contract law. In particular, its Principle no. 13 lays down a rule on force majeure and hardship in light of which national contract laws may be re-examined. Consequently, an event considered to amount to force majeure will usually entail in the contract that the debtor at stake will be relieved of the duty to compensate for non-performance. Therefore, force majeure does not necessarily lead to the termination of the contract. The present paper, thus, analyses the new Principle no. 13 from the perspective of (mostly) Spanish contract law, the CISG and several soft law instruments.
Jevremovic, Nevena, ‘Article 79 CISG: Testing the Effectiveness of the CISG in International Trade Through the Lens of the COVID-19 Outbreak’ in Poomintr Sooksripaisarnkit and Dharmita Prasad (eds), Blurry Boundaries of Public and Private International Law: Towards Convergence or Divergent Still? (Springer, 2022) 127–155 Abstract: The resilience of contracts and the role of contract law has been put to the test in responding to the global COVID-19 pandemic. Various government measures significantly impacted international trading relationships. Supply chain disruptions and uncertainty continue to pose a threat as different countries approach the pandemic with differing priorities and interests. Therefore, parties to international sales contracts seek to identify ways to keep existing commitments, protect against future losses, be compensated for losses they have suffered, and decide whether it is profitable to keep the contract in place. It is vital to examine the legal issues around the possible legal responses to the COVID-19 crisis. However, it is plausible that the lack of predictability regarding the scope, time, and location of governmental measures will introduce further complications. Moreover, the impact of the COVID-19-related measures extends beyond the contractual parties, contributing to adverse social consequences worldwide. The United Nations Convention on Contracts for the International Sale of Goods (CISG or Convention) should reduce these complications by providing predictability and certainty in dealing with the consequences of the pandemic through its uniform rules. The reality, however, is far from ideal. The impact of COVID-19 will bring further challenges in the uniform application of the Convention; and it will do so through one of its most controversial provisions: Article 79. Through the lens of Article 79, this chapter will discuss the effectiveness of CISG as an instrument of public international law adopted with the goal of unification of international sales law. It will (re)consider the negotiation leading to the final text of Article 79, highlight trends in its interpretation and application, and consider possible routes to uniform interpretation and application in the post-pandemic era. In doing so, the chapter will explore whether and to what extent interpretation of Article 79 can encompass adverse social impact in trading relationships between the buyers of the global north and the suppliers of the global south.
Jevremovic, Nevena, ‘CISG & Proactive Contracting: Suspending Performance under Art. 71 CISG in Time of a Global Pandemic’ in Zlatan Meškić et al (eds), Balkan Yearbook of European and International Law 2020 (Springer, 2021) Abstract: The profound economic and social impact of the global COVID-19 pandemic put to the test the resilience of commercial relationships, pushing legal academia and practice to consider questions beyond the mere impact of certain institutes of civil or common law tradition: the role of the contract law in supporting the survival of affected trading relationships. The discussion under CISG has focused mostly on the interpretation and application of its provisions – notably Art. 79 – but did not go significantly further than that. This paper aims to contribute to the existing discussion in two ways. First, is to bring to the table a discussion around a remedy embedded in Art. 71 (1) & (3) CISG: the right of suspending performance. Second, to put such remedy in the context of proactive contracting, demonstrating the potential for its use in structuring and managing the pandemic (or any other event) going forward. The discussion will, therefore, focus on the current interpretation and application of Art. 71 (1) & (3) CISG, and will then move to clarify the ideas behind proactive contracting, and ways in which participants in international sales contracts can use Art. 71 (1) & (3) CISG to address performance and adaptability risks within their relationship.
Kaneko, Yuka, ‘Asian Perspective on the State and Market Responses to the COVID-19 Pandemic’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer Nature, 2023) 123–147 Abstract: This chapter summarizes major findings from the joint survey on the ‘justice’ sought in the pandemic within the contexts of legal, institutional and cultural differences between Asian economies, under the auspices of the Kobe University Center for Social System Innovation, involving contributors from China, Indonesia, Korea, Myanmar, New Zealand, the Philippines, Thailand and Vietnam as well as Japan. Opposing to the economists’ arguments on the ‘trade-off’ between infection control and the economic impact of COVID-19, the survey found that countries which applied a ‘request-based’ pandemic control in an attempt to mitigate the ‘trade-off’ have seen a prolonged negative impact in the socio-economy where the SME sector is compelled to assume risks. Normal time contractual relations are expected to be modified to avoid the worst type of transfer of burden onto the most vulnerable groups, but the joint survey has found a tendency of ‘dry’ contractual culture in most of the target countries where the historical doctrines of capitalist law for the emergency modification are forgotten, except for rare exceptions such as the regional SME financing in Japan.
Kaneko, Yuka, ‘Law and Social Changes in a Pandemic: Results of Survey of COVID-19-Affected SMEs in Kobe, Japan’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer, 2023) 1–26 Abstract: This chapter investigates into the law and social changes in Japan under the impact of COVID-19, in a search for ‘justice’ in the social allocation of the burden caused by the pandemic, with a particular focus on the contractual relations surrounding small- and medium-sized enterprises (SMEs). A number of distortions are detected in the contractual relation resulted from regulatory intervention or trade customs which impede contract renegotiation which could otherwise be expected for mutual risk-sharing in the emergency. Another controversy is that the results of the failure of ‘small government’ that delayed infection control have been transferred to the regional financial sector for SMEs, but the government is taking this as an opportunity for a financial sector restructuring.
Kiraz, Ş Esra and Esra Yıldız Üstün, ‘COVID-19 and Force Majeure Clauses: An Examination of Arbitral Tribunal’s Awards’ [2020] Uniform Law Review Article unaa027 (advance article, published 29 December 2020) Abstract: The coronavirus (COVID-19) pandemic has taken a toll on people all across the world in various aspects. The severe consequences of this pandemic can be seen in international trade and commercial contracts. The underlying principle of contract law is that the parties are bound by the promises given under an agreement; however, events such as COVID-19 affect the parties’ performance of contractual duties. The harsh measures, such as prohibition on importation and exportation of goods or travel bans, have seriously affected the parties’ performances. In such situations, force majeure clauses, which serve as an exemption from non-performance, come into play. This article aims to reveal how COVID-19 will be assessed in terms of force majeure and the possible attitudes of arbitral tribunals towards these cases. This assessment is undertaken in light of force majeure clauses laid under the Convention on Contracts for the International Sales of Goods, the Unidroit Principles of International Commercial Contracts, and the International Chamber of Commerce’s 2020 Force Majeure Clause.
Kruvi, Noy, ‘The Pandemic Special with a Side of Shut-Downs: A Note on NYC’s Restaurants in the Age of COVID-19’ (SSRN Scholarly Paper No 4321187, 14 April 2021) Abstract: There is an old phrase that resonates from time immemorial throughout the streets of New York City: carpe diem. Latin for ‘seize the day,’ the Roman poet Horace used the phrase to express the attitude of enjoying life for as long as one still can. The streets of New York City invite all of its walkers to partake in the celebration, by offering endless bars and restaurants to explore. This feeling is irresistible when walking around Downtown, in search of hidden gems. Even a busy lunch hour in Midtown is filled with a wonderous array of diverse cultural foods that some locals have mastered. Yet there is a good reason why Horace emphasized enjoying life while one still can: like waking up from a dream, it can all be gone in an instant. In 2020, when the ‘invisible enemy’ turned New York City into a ghostown almost instantaneously, the restaurant industry descended into chaos, and the timeless lesson emerged once again. SARS-CoV-2 is the virus causing the coronavirus disease (COVID-19). The World Health Organization (WHO) stated the virus originated in Wuhan, China. On March 11, 2020, the WHO declared COVID-19 a global pandemic. On the day of this declaration, New YorkCity reported its first COVID-19 associated death.5 Three weeks after the discovery of the coronavirus, NYC accounted for 5% of the world’s confirmed cases, rendering the region a global epicenter. By May 2, 2020, New York City recorded 13,831 COVID-19 deaths, and estimated an additional 5,048 probable deaths. COVID-19 is infamous for its lethal effects: the Center for Disease Control listed Covid- 19 symptoms that include ‘fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches . . . . ’ For individuals who are at higher risk of severe illness (young children, the elderly, and those with compromised immune systems), COVID-19 is deadly. Globally, and as current as January 2021, the WHO reported 98,794,942 confirmed cases, and over two million deaths. When the pandemic struck the State of New York in March 2020, Governor Cuomo signed Executive Order No. 202, declaring a state of emergency. Shortly afterwards, the Governor signed the ‘New York on PAUSE’ Executive Order, requiring all nonessential businesses to shut down. Subsequent guidance clarified the meaning of ‘essential businesses,’ which did not include restaurants. The COVID-19 crisis in New York City eviscerated most restaurants’ capacities to conduct their ordinary business activities. Even when New York City (‘NYC’) began entering its reopening phases, the economic ramifications of COVID-19 and the Executive Orders continued to pose unprecedented hardships for restaurants. Given the substantial health risks of resuming restaurant work amidst a global pandemic, many restaurant owners concluded that reopening their businesses would be an unprofitable and dangerous affair. Accordingly, many restaurant owners diligently, although with great sadness, elected to close shop permanently. Commercial rent in Midtown Manhattan and throughout New York City is expensive. Rent may be as high as thousands of dollars per square foot. As such, the pandemic caused landlords great angst about lost income, and many began pestering small business owners for rent. Beyond pestering, landlords launched a brigade of lawsuits to recover rent owed. This crisis raises complicated questions of contract and property law regarding commercial leases in the event of unforeseeable emergencies: should defendants in breach of contract lawsuits be required to pay rent when performance of the paramount contractual terms, e.g., operating a business safely, are no longer possible? Does a global pandemic constitute an ‘act of God’ capable of triggering force majeure clauses? And in the absence of such clauses, can the common law doctrines of impossibility of performance or frustration of purpose rise up to the defense of the small business owner? Can the State and City of New York solve this matter through legislation and ordinances? This Note explores these questions, while prescribing the need for force majeure clauses in every restaurant’s lease that clearly define pandemics, and perhaps other imminent natural disasters as triggering events, as the most powerful prospective solution.This Note proceeds as follows: Part I discusses relevant background information concerning COVID-19’s impact on New York City from public health, economic, and administrative perspectives. Part I also unpacks the federal CARES Act, examining some of its economic relief programs, as well New York City’s local ordinances and their efficacies. Part II analyzes the common law doctrine of force majeure and its applicability to the COVID-19 crisis. Part III examines the usefulness of the impossibility of performance doctrine, as an alternative to force majeure. Part IV proposes mandatory force majeure legislation and tests its constitutional dimensions. Lastly, this Note will summarize the major arguments and themes, and will reemphasize the policy considerations of protecting small restaurant owners from unjust enrichments in the COVID-19 context.
Lessans, Robyn S, ‘Force Majeure and the Coronavirus: Exposing the “Foreseeable” Clash Between Force Majeure’s Common Law and Contractual Significance’ 80(3) Maryland Law Review 799–830 Abstract: This Comment highlights a largely unexplored area of force majeure jurisprudence: the unclear and conflicting relationship between force majeure as a contractual tool and force majeure as a term of common-law significance. At common-law, force majeure was traditionally defined as an unforeseeable event that prevents compliance with contractual obligations. By contrast, modern contract jurisprudence developed an increased reliance on force majeure clauses, in which parties identify specific events that may excuse nonperformance. These force majeure clauses do not need to be unforeseeable to be enforceable.
Lewis, Russell et al, ‘COVID-19: Force Majeure to the Rescue?’ (2020) 56(5) Tennessee Bar Journal 20–22 Abstract: While businesses are battling the coronavirus disease 2019 (COVID-19) — the most challenging epidemic the world has faced since the Spanish Flu outbreak that occurred after World War I — their contractual obligations do not disappear. Force majeure may, however, excuse those obligations. But as discussed below, force majeure may be a limited potential solution, rather than a panacea.
Lim, Nicole, ‘COVID-19 Implications for Contracts under Singapore and English Law’ (2020) 2020 Singapore Comparative Law Review 119–127 Abstract: Introduction: COVID-19 has been regarded as the ‘black swan’ event of 2020, causing massive upheaval to businesses and impacting economic ecosystems on an unprecedented scale. Since the onset of the pandemic, governments across the globe have responded with measures in the form of border restrictions and orders requiring employees to stay at home, which have severely disrupted business operations and supply chains. Many businesses which encountered difficulties in fulfilling their contractual obligations faced the threat of damages claims or risked having their deposits forfeited or leases terminated. This article will explore two primary avenues of contractual relief-force majeure clauses and the doctrine of frustration-under English and Singapore law. While Singapore’s position in these two areas of law accords with the English position, local jurisprudence further elucidates the legal position for parties. Also, new legislation fast-tracked through the Singapore Parliament now offers affected businesses and individuals interim relief in relation to certain contracts.
Lipshaw, Jeffrey, ‘Between Rights and Rites: The Ironies of Crisis and Contract’ (2022) 85(2) Law and Contemporary Problems 77–97 Abstract: Is contract in crisis? Other co-contributors’ worthy responses to the question largely fall into two camps, both inspired by COVID-related dislocation. Some focus on prototypical conundrums of contract law doctrine like impracticability or frustration of purpose. There the fundamental question is whether, on one hand, the post-contracting events eviscerated either the means or the logic of performance or, on the other, the contract, expressly or impliedly, allocated the risk of those events. Other co-contributors contemplate the institution of contract law itself, say, how standard contract provisions evolve to reflect circumstances, how the institution adapts to relationships rather than mere transactions, or how the institution fosters unfairness or injustice.
Lipson, Jonathan C and Norman M Powell, ‘Contracting COVID: Private Order and Public Good (Standstills)’ (2021) 76(2) Business Lawyer Pre-published version of paper available on SSRN
Abstract: The novel Coronavirus (2019) (COVID) has created a dilemma: Open the economy and spread disease; quarantine and choke the economy. Thus far, the response has looked to government for health-safety standards and financial subsidies. Although these are necessary steps, they have become politicized, thereby exacerbating severe uncertainties created by the pandemic. While we will surely halt it, we do not know how, when, or what comes next. Many writers are exploring litigation that will flow from COVID. This Article considers the flip side: the important but under-appreciated role that ex ante contracting plays in addressing the COVID dilemma. Liability waivers, for example, will be ubiquitous, but might be misused to shelter poor risk management. This essay argues that these waivers should be enforceable only when coupled with reasonable health-safety precautions, which may appear in contracts such as workplace rules or supply chain agreements. Without such balance—or worse, when imposed by fiat, as President Trump did in the meat processing industry—they can inflame the public health crisis. At the same time, the COVID-induced shutdown has caused most contracts to be in or near breach. This has resulted in responses such as litigation, bankruptcy, and bailouts. While these may be inevitable, second-order contracts such as standstill agreements provide certainty that enables parties to adjust commercial relationships in ways that may preserve more value at lower cost than public interventions.Contract in this context is thus doing more than creating private order; it is also producing public good. This hearkens to Depression-era scholarship which argued that contract had public ramifications. Although modern writers have largely abandoned that view, it reflected a change in mindset that cleared the way for sweeping New Deal reforms. While we do not yet know whether COVID will be as disruptive as the Depression, the uses of contract described here may signal a comparably dramatic realignment of private and public.
Liu, Qiao, ‘COVID-19 in Civil or Commercial Disputes: First Responses from Chinese Courts’ (2020) 8(2) Chinese Journal of Comparative Law 485–501 Abstract: This comment highlights major civil or commercial (mostly contract) law provisions in 23 judicial documents newly released by the Supreme People’s Court or High People’s Courts in China in response to the outbreak of the COVID-19, and assesses the significance of key changes that they make to the pre-pandemic law. It concludes by noting the increased role of the doctrine of the change of circumstances and the ‘contract purpose’ test, the emphasis placed on consensual solutions (by way of mediation and contract re-negotiation), and the flexibility and relatively clearer guidance afforded to lower courts in their adjudication of contract disputes arising in connection with the COVID-19.
Liu, Qiao, ‘Force Majeure or Change of Circumstances: An Enduring Dichotomy in Chinese Law?’ (City University of Hong Kong School of Law Legal Studies Research Paper No 2022 (2)–007, 12 December 2022) Abstract: This chapter explores the unbalanced interrelationship between the twin doctrines of force majeure and change of circumstances under Chinese law. It examines key judicial documents and cases, as well as legislative materials (including the Chinese Civil Code), and identifies two factors which not only have contributed to Chinese courts’ excessive reliance on the doctrine of force majeure, but have also plagued this area of Chinese law with dogmatism, arbitrariness and utter whimsy. Such factors comprise a general tendency to categorically characterise a supervening event as force majeure and Chinese courts’ misinterpretation and unwarranted extension of the ‘cannot perform’ test. Through a comparison of the differing judicial approaches to SARS and COVID-19 cases, this chapter suggests that the above tendency should give way to an approach which places the impact of the event on contract performance at the centre of the inquiry and that a broad interpretation of ‘cannot perform’ should be adopted with ‘exemption of liability’ being restored to its proper meaning.
Lowenstein, Henry and Laura L Sullivan, ‘Contracts and the Covid-19 Virus Pandemic’ (2021) 30(Fall) Southern Law Journal 57–96 Extract from Introduction: This article provides a contemporaneous summary overview of the COVID-19 crisis as it impacts contracts, as a reminder to legal scholars, information for business law students, and for the benefit of non-attorney business managers and consumers. This article provides readers context, and an overview of the legal mechanisms at work during this critical national emergency and a rapidly evolving legal and contractual environment. It also provides food for thought on the potentially lasting impacts and implications for the law of contracts after the immediate crisis has abated.
Lytvyn, Stepan et al, ‘Legal Regulation of the Agreement on Provision of Tourist Services during the Pandemic Covid-19’ (2021) 12(2) Journal of Environmental Management and Tourism 501-506Jurisdiction: Ukraine
Abstract: The article is devoted to the content of legal instruments in terms of tourism business, namely the problems of legal regulation of the contract for the provision of tourist services. The analysis of the state of development of this problem shows that the issue of legal regulation of contractual relations in general and the contract in tourist services in general is insufficiently studied. This is due to various factors, including the fact that constant integration processes to the international community force Ukraine to adjust its domestic legislation in accordance with international requirements, but these measures are often inconsistent or incomplete, so there are many contradictions in modern Ukrainian civil law. The author's vision of the content of the package of measures that can positively influence not only the development of the tourism industry in general, but primarily to help identify those legal segments that need improvement in the future.
MacMillan, Catharine, ‘Covid-19 and the Problem of Frustrated Contracts’ (2021) 32(1) King’s Law Journal 60–70 Abstract: Covid-19 has created an unexpected global pandemic which has brought unprecedented and wide ranging restrictions from governments around the world. One result of these events has been profound disruptions to individual contracts. This article considers the nature and history of the doctrine of frustration in English law. The lack of certainty in ascertaining whether or not an event is a frustrating one is examined. A consideration of the particular problems innumerable parties will face in attempting to decide whether or not their contract has been discharged by frustration as a result of Covid-19 and the regulations designed to curtail the virus are made. The article concludes with an overview of the Law Reform (Frustrated Contracts) Act 1943.
MacQueen, Hector L, ‘Third Ole Lando Memorial Lecture: European Contract Law in the Post-Brexit and (Post?)-Pandemic United Kingdom’ (2022) 30(1) European Review of Private Law 3–28 Abstract: The subject-matter of this lecture is the fate of ideas about or from European contract law in a United Kingdom (UK) which ceased to be a Member State of the European Union (EU) on 31 January 2020 and then shortly afterwards shared the common European and indeed global experience of the coronavirus pandemic. Its main thrust is that, while in the UK Brexit has been a major setback to the idea of European contract law – indeed, European private law – the continuing pandemic provides an opportunity for Scots and English law to re-engage with the subject to find answers – or better answers – to the problems which they now face. The main substantive topics addressed are frustration of contract, equitable adjustment upon change of circumstances, and the requirements of good faith.
MacQueen, Hector L, María Kubica and Albert Ruda, ‘“Coronavirus Contract Law” in Scotland’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: This chapter describes the Scottish legislative response to the coronavirus pandemic, noting that the chief impact on contracts is most likely to arise from issues of the supervening illegality of particular kinds of activity normally carried out under contracts. Scottish law largely follows English law in its doctrine of frustration and its approach to force majeure clauses. The paper accordingly suggests that the temporary interruptions to performance which the coronavirus legislation brings about may not be sufficient to discharge affected contracts. The Scottish courts law may need rather to develop their very limited powers of equitable adjustment in response to changed but not necessarily frustrating circumstances. Some ways in which this might be done are suggested.
Majumder, Bodhisattwa and Devashish Giri, ‘Coronavirus & Force Majeure: A Critical Study (Liability of a Party Affected by the Coronavirus Outbreak in a Commercial Transaction)’ (2020) 51(1) Journal of Maritime Law & Commerce 51–63 Abstract: The article discusses the issues on the use of the force majeure clauses in commercial transactions due to the coronavirus pandemic when the virus is not explicitly included in the terms of agreement. Also cited are the clauses’ aim to eliminate the liabilities of both parties in a contract, a background of the pandemic that affected up to 24 countries, and the Principles of International Commercial Contracts detailing why the pandemic is a force majeure event.
Mallet, Pierre, Najlaa Flayyih and Zeana Ghanim Abdijabar, ‘The Legal Value of Zoom’s Contractual Terms: A Comparative Analysis of the UAE and French Law’ (2023) 37(1) International Review of Law, Computers & Technology 110–125 Abstract: The Covid-19 pandemic led to a surge in the use of video-conferencing services offered by Zoom, which has continued in post-pandemic times. This paper sheds light on Zoom’s contractual terms related to governing law and jurisdiction, and its applicability in Emirate and French laws. It attempts to answer the question about the circumstances in which the local courts will take jurisdiction over a dispute, notwithstanding that the parties agree that such disputes will be resolved in the jurisdiction stated in the clause. It also provides an analysis of the exclusion and limitation of Zoom’s liability clause. Specifically, it looks at the effectiveness of the limitation of Zoom’s liability in Emirate and French laws. The study emphasizes the need for policy and legislative framework to address this new area of law and technology to protect users from contractual terms in e-services agreements since video conferencing services continue to thrive and drive growth in the post-pandemic world.
Marchisio, Emiliano, ‘Reflections on the “Just Price” in Times of Crisis (with Reference to Coronavirus ... but Not Only)’ (2021) 17(3) European Review of Contract Law 285–314 Abstract: The debate about the ‘just price’ has ancient origin and returns forcefully to the scene when, in the event of crises of various kinds, there is a rapid and significant increase in prices of given goods or services. The main issue is whether price increases of such a nature could, or should, be considered illicit and ground the issue of sanctions against the firms increasing prices, thus focusing on a macro-systemic level of analysis. The central part of the article reviews different theories on what a ‘just price’ should be and focuses on the idea that a price is ‘just’ when it functions as an index of relative scarcity in free markets. It is claimed that such a function deserves protection by Italian and EU law. Therefore price adjustments in response to shocks cannot and should not be considered illegal: it is unacceptable to sanction private firms by attributing them the wrong of not having substituted themselves, at their own expense, for the exercise of a public function (that of making sure that price increases do not put at risk solidarity and other constitutional principles).
Mashishi, Thato, ‘The Convergence of COVID-19 and Force Majeure’ (2020) 20(3) Without Prejudice 10 Abstract: On 11 March 2020, the World Health Organisation (‘WHO’) characterised COVID-19 as a pandemic pursuant to an assessment by the WHO. As the global community grapples with COVID- 19 and its ramifications, parties to commercial agreements have not been spared from panic in respect of the adverse effects on those agreements.
Mathew, Renjith, ‘Force-Majeure under Contract Law in the Context of Covid-19 Pandemic’ (SSRN Scholarly Paper No ID 3588338, 1 April 2020) Abstract: Force-majeure and Frustration are contract principles which are very significant in the present context of Covid-19 pandemic. This article is a study on the said contract principles with various judicial pronouncements on the applicability of force-majeure and frustration.
Matias, Célia F and Monica Chan, ‘In a Bubble by the Sea: COVID-19, Time and Contract Law in the Macau S.A.R.’ in Normann Witzleb (ed), Contract Law in Changing Times (Routledge, 2022) Abstract: As a result of the COVID-19 pandemic, Macau has been largely isolated from the outside world for more than two years. Despite an effective control of the virus within borders, this situation has led to a considerable strain on residents and businesses. So far, a mixture of informal adjustments and governmental incentives have prevented an influx of contractual default cases to the courts. However, as restrictive measures remain in place, more residents and business are likely to face difficulties. In this context, striking the right balance between the principle of pacta sunt servanda and contractual justice is of paramount importance, especially in long-term contractual relationships, such as rentals, which are more vulnerable to changes of circumstances over time. This chapter analyses the exceptions to pacta sunt servanda in Macau law, with a special focus on the mechanism of termination or modification based on change of circumstances and its applicability to long term contractual relationships in the context of the COVID-19 pandemic.
McEvoy, Emma, ‘Procuring in a Pandemic: Assessing the Use of the EU Public Procurement Directives, the Joint Procurement Agreement and Advance Purchase Agreements’ (2022) 73(2) Northern Ireland Legal Quarterly 260–282 Abstract: Since the COVID-19 pandemic began, public procurers have faced an uphill battle to secure urgently required medical countermeasures. Contracting authorities in the face of extreme urgency at the start of the pandemic relied heavily on emergency provisions to deactivate procedural requirements and conclude contracts on the basis of direct negotiation. Additional procurements were conducted at a European Union (EU) level, leveraging the buying power of member states to rapidly secure the acquisitions of medical equipment, medicines, vaccines, booster shots and more recently COVID-19 therapeutics. The article offers an analysis of the use of the negotiation procedures and the European coordinated efforts to conclude COVID-19-related contracts. As we optimistically move towards the final stages of the pandemic, this article argues that it is time to retire the use of emergency procurements. It contends that such emergency provisions are no longer available for use and procurers, if not already, must return to the use of fully transparent and competitive procurement procedures. Furthermore, it suggests that the EU should build on the success of the coordinated approach of competitive tendering and extend the use of the Joint Procurement Agreement to prepare for future cross-border health crises and acquire in-demand medical countermeasures.
Menyhárd, Attila, ‘Impacts of COVID-19 in Hungarian Contract Law’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The legal and social consequences of the COVID-19 epidemic raise challenges in legal systems. Incompleteness of contracts requires statutory or judicial intervention in order to reach the most efficient risk allocation in contractual relationships. In Hungarian contract law implied terms, impossibility and judicial amendment of contracts on the grounds of clausula rebus sic stantibus provide the doctrinal framework for such an assessment. These doctrines provide the legal framework for balancing the conflicting interests of the binding force of contracts and the demand for adjusting social and legal relationships to changing circumstances. Contracts are to be assessed on a case-by-case basis, but it is argued here that commercial and non-commercial transactions require different approaches as well as direct legal and indirect social consequences should be considered differently.
Misridaputri, Syifa Salsabila, Isis Ikhwansyah and Purnama Trisnamansyah, ‘Port Closure Due to the Covid-19 Pandemic in the Law of Carriage of Goods By Sea and Unidroit Principles of International Commercial Contracts’ (2023) 6(2) Riwayat: Educational Journal of History and Humanities_ _Abstract: Port closure as an effort to slow the spread of the Covid-19 virus has had various impacts, such as port congestion which has led to delays and drastically increased transportation costs. This study examines the impacts caused by port closures and legal remedies that can be taken based on international sea transport law. Losses due to port closures cannot be borne by the carrier based on the conventions of sea shipping law as long as the carrier can prove that the fault was not his own. The closure of the port can be categorized as a hardship, in which there are fundamental changes that affect the agreement, namely the increase in shipping costs and delays. efforts that can be made based on the UPICC are renegotiation, and if it fails, the parties can seek a dispute settlement through the courts. In implementing the agreement, the parties must prioritize the principle of good faith and prove that the losses incurred and losses did not originate from themselves.
Mohammed, Abdul Basit Jassim, ‘The Effectiveness of Private Law Rules That Regulate Exceptional Circumstances in Settling Disputes Resulting from the Emerging Circumstance Covid-19 Corona Virus) as a Model’ (2020) 10(2) AL-ANBAR University Journal of Law and Political Sciences 219–254 Abstract: The world was not this close to social contact, nor with this size of economic exchange, before the era of (globalization), which unified the effects of the new circumstances that humankind is going through, and if legal thought was able - previously - to establish new circumstances - at that time - based on One legal theory, (such as emergency circumstances) and (force majeure), the reason for this was the limitation of the circumstance (spatially), while the situation - today - is completely different, in terms of the impact of the whole world, in its various sectors, by the new circumstance, by the action of (globalization) that made The whole world is a small village, which entails an evolution in contractual relations, whether in the mechanisms of their conclusion or in the mechanisms of their implementation. The rules of private law have succeeded, to a satisfactory extent - until now - in regulating these relationships in the event of exceptional circumstances, and as it was possible to conclude contracts between those spatially far apart, many of them were easily implemented through the same web, and this is why it is no longer fair to consider the impact of new circumstances on obligations. Contractualism based on one legal theory, as long as it is possible to keep a group of them enforceable despite the new circumstances, and the possibility of applying the provisions of the theory of (force majeure) to a second sect, and the provisions of the theory (emergency conditions) on a third sect, in addition to the possibility of granting a judicial term (easy view) For a fourth class of them, and so forth, at the same time, and towards the same emerging circumstance, due to the flexibility and comprehensiveness that characterize the rules of private law that regulate exceptional circumstances. What helped - in fact - to settle disputes resulting from the new circumstances, according to several theories, in order to achieve the greatest degree of justice and balance between the conflicting interests.
Mulaee, Ayat, ‘Consequences of Covid 19 on Administrative Contracts’ [2022] Journal of Law Research (advance article, published online 5 July 2022) Abstract: From 2019, human social life has been confronted with the global problem of “Covid 19”. This, of course, has led to problems for public affairs, including the field of contracts, as part of public affairs has been shut down or partially shut down as a result. One of the most important consequences of such a situation has been the crisis in the relations between the contracting parties, which will undoubtedly increase in the future. The present article, realizing such importance, has discussed this issue in the Iranian legal system. In this regard, this article seeks to answer the question, what are the consequences of “Covid 19” on administrative contracts? In answer to this question, an attempt has been made to answer it using the research method: descriptive-analytical. The hypothesis of the present article has been that in the current situation, Corona virus has faced the excuse of implementing some administrative contracts: “force majeure” and “unpredictable matters”. In the end, it is concluded that, firstly, some administrative contracts have faced the phenomenon of “force majeure”; as a result of the Covid 19 crisis, and therefore have faced the challenge of temporary suspension to permanent suspension. Second, some of these contracts face the phenomenon of “unpredictability” because of Covid 19 and it is worthwhile for the government to make a strategic and fundamental decision as soon as possible and without delay as to how to deal with this deadly virus, before the Covid 19 crisis triggers other crises.
Nguyen, Xuan-Thao, ‘Contract as Emergency Law’ (2021) 30(3) Washington International Law Journal 420–469 Abstract: This Article offers a new perspective of contract law as emergency law. Doctrines of impossibility, supervening events, force majeure, and good faith performance are core principles resiliently allowing parties to address contract nonperformance under state of emergency crises. Comparatively, China prefers drastic measures to confront contract nonperformance problems by issuing Certificates of Force Majeure, permitting Chinese companies to escape contract liability and forfeiting the resiliency of contract law as emergency law. The Article argues that the pandemic reaffirms the role of contract law as emergency law and urges governments to solidify the freedom to contract.
Nicolussi, Andrea, ‘The Pandemic and Change of Circumstances in Italy’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The contribution is divided into two parts. The first describes the essential lines of the discipline of contingencies (change of circumstances in a broad sense) in Italian law with some comparisons with English common law. In particular, two subdivisions of the subject are presented. The former is the distinction between contingencies that disrupt the exchange covered by the contract in a qualitative sense and contingencies that disrupt the exchange covered by the contract in a quantitative sense. The latter is the distinction between typical contingencies, that is, legally foreseen and disciplined, and atypical contingencies, that is, not governed by the contract or by the law and which can make the equity criterion intervene. After this premise, the author analyses two hypotheses of lease contracts, those for commercial use and those for the residence of university off-site students, which can be considered examples of typical contingencies and atypical contingencies respectively. The Author concludes with a reference to quantitative contingencies with regard to which he takes into consideration the remedies of termination, equitable adjustment and renegotiation.
Nongogo, Anele, ‘Electronic Signatures in Commercial Contracts’ (2020) 20(4) Without Prejudice 46–47 Abstract: The outbreak of the COVID-19 virus has led to most South Africans working from home or other remote areas. A direct result of this is the lack of access to office equipment such as printers and scanners, which means that some commercial contracts will now have to be signed electronically. This article will discuss the use of electronic signatures and advanced electronic signatures in commercial contracts in South Africa, focusing on the Electronic Communications and Transactions Act (25 of 2002) (ECTA). The ECTA is the primary legislation that regulates electronic signatures and advanced electronic signatures.
Nousia, K, ‘The Covid-19 Pandemic: Contract and Insurance Law Implications’ (2020) 35(7) Journal of International Banking Law and Regulation 274–283 Abstract: The spread of COVID-19 has had a global impact, with the human toll being significant, and with the economic cost being unquantifiable. With regards to business and contractual relationships, legal liabilities owed to disruption, cancellations, or to the imposed halt of everyday life are perhaps the most notable. This article starts by examining frustration in English, US and continental contract law in relation to cases where the circumstances have changed due to unnatural events such as the ongoing COVID-19 pandemic. It then moves on to discuss the impact of Covid-19 on insurance, in particular business interruption, travel and general liability insurance. The likelihood of success of future claims, the scope of coverage, together with the meaning and interpretation of the term ‘force majeure’ and how this will relate to exclusions from insurance coverage is discussed. Valuations methods are also considered and evaluated with a view to protect the policyholder as his business interruption policy is a contract of adhesion not having left him any room to negotiate. In addition, possible interpretations to be followed by courts in future claims and liability for catastrophic risks and methods of compensation are examined and conclusions on the role of insurance in the COVID19 pandemic are drawn.
Ogwu, Ogochukwu Joshua, ‘Imminent Contractual Issues in the COVID-19 Era “The Legal Implications”’ (SSRN Scholarly Paper No ID 3615734, 30 May 2020) Abstract: Beyond the alarming spread of COVID-19 across the globe and the social distancing measures being put in place by the government authorities all over the world, the sting of the pandemic has had far reaching effects and has found its way into almost every sector of the economy. Businesses are at risk of being wind up, contractual obligations are likely to be breeched if not properly reviewed, terms of contract between employers and employees have become airy-fairy and the atmosphere has become a false dawn for potential investors, stakeholders and growing industries. This article seeks to address the imminent issues that may arise from the impact of the pandemic as it relates to contractual agreements and proffer possible recommendations.
Olatoye, Deji, ‘Law in a Time of Corona: Global Pandemic, Supply Chain Disruption and Portents for “Operationally‐Linked (but) Legally Separate” Contracts’ (2021) 6(2) University of Bologna Law Review 171–238 Abstract: The novel coronavirus (Covid-19) pandemic has resulted in the disruption of activities in major centres of global production, with adverse portents for contractual obligations across global supply chains. The global pervasiveness and dynamic propagation of the risks arising from contractual failures provides an opportunity to reconsider the nature and impact of mechanisms for excusing failure to perform contractual obligations under adverse circumstances (Excuse).Such mechanisms include those found in the general law (for example, frustration in common law and analogous doctrines in civil law traditions) and contractual clauses (for example, Force Majeure and hardship clauses). Establishing extant rights and obligations under current contracts may provide only limited illumination on how parties will address these failures. Principles in economics of contract (e.g. incomplete contract and transaction cost theories) and the commercial reality of global supply chains both suggest that parties tend to lean towards contract- and relationship-saving adjustments, rather than strict enforcement of rights. Therefore, this article analyses the doctrinal and contractual regimes of Excuse with a view to assessing their respective scopes for transaction and relationship saving. It also highlights the peculiar nature of supply chain relationships wherein exchange partners enter into a sequence of dyadic relationships aimed at delivering a good or service to the end user. The tension between that operational logic and the legal principle of privity of contract makes these relationships – undergirded as they are by what we call ‘operationally-linked (but) legally separate’ (O.L.L.S.) contracts – peculiarly vulnerable to mismatches in their Excuse regimes. Mismatches occur where failure to perform a determinant contract is more easily or much earlier excusable than in a dependent contract within the same chain operation. This may, in turn, exacerbate risks of supply chain disruptions in a pandemic scenario. The article designs a framework by which the doctrine-contract complex in the regimes may be used to test the dynamic scenarios of a global pandemic for the purpose of scanning for such mismatches. This framework will be useful in both post-event circumstances, as parties embark on relationship-saving negotiations, and in designing ex ante risk management measures. Through the understanding of the peculiarity of supply chain relationships and the O.L.L.S. contracts, this article also proposes to open up new directions in which the insights therefrom might be useful. An example suggested and prefatorily explored in this article is in the ‘governance beyond privity’ conundrum in the context of supply chain disruption. Another is its potential contribution to the emerging multifactorial approach to determining frustration of contract in some common law courts.
Onyango, Kevin Otieno, ‘Non-Performance: The Impact of COVID-19 on Contractual Obligations in Kenya’ (SSRN Scholarly Paper No ID 3707988, 9 October 2020) Abstract: The measures taken to counter and contain COVID-19 in Kenya in terms of curfews, restrictions of movement, closure of businesses and schools and even ban on international travel. Many parties entered into contracts without foreseeing the drastic effects of COVID-19 on the performance of their contractual obligations. This paper analyses the impact of COVID-19 on the performance and enforcement of contractual obligations in Kenya.
Opinio Juris in Comparatione (2020) Special Issue: Impact of Coronavirus Emergency - Section One: Law of Obligations and Contract - Agbam, Komlavi, ‘Instant Paper for Senegal'
- Brand, Isué Natalia Vargas, ‘An Overview of the Colombian Contract Law, in Times of the COVID-19 Pandemic’
- Deshayes, Olivier, ‘The Impact of Covid-19 Crisis on the French Law of Contract’
- Härmand, Karin Sein-Kai, ‘Impact of Covid-19 Pandemic on Contractual Relationships: The Case of Estonia’
- Mostajo, Daniel Ugarte and Raúl F Zúñiga, ‘The Impact of the Health Emergency on Contract Law: National Report Peru’
- Moradinejad, Reza, ‘Relevance of Contract Law Solutions Under a Pandemic’ [Jurisdiction: Quebec]
- Muñoz, Edgardo and Romina Guarneros, ‘The Impact of Covid-19 in Mexican Contract Law’
- Schelhaas, Harriet N, 'Corona and Dutch Contract Law'
- Strugała, Radosław, ‘Law of Contracts in Times of Covid-19 Pandemic: Polish Report’
- Tsolakidis, Zafeirios N, ‘COVID-19 Pandemic and Greek Contract Law’
- Uribe, Rodrigo Momberg and Alberto Pino Emhart, ‘The Impact of COVID-19 in Chilean Contract Law’
- Wahnschaffe, Christian Johannes, ‘The Impact of COVID-19 in German Contract Law’
Abstract: It has been claimed that technology would replace the legal profession with artificial intelligence and codification of documents replacing the twenty-first century lawyer. With this premise in mind, this paper discusses smart legal contract formation in the context of Australian contract law, the perceived replacement of lawyers through blockchain technology and how the COVID-19 pandemic has set the trajectory for smart legal contract convention. We consider whether the legal profession can ever truly be replaced by technological advances and whether COVID-19 has pivoted the way the legal profession performs business transactions towards modernisation. Although prior literature has considered how the legal profession may benefit from increased technology use, the expected timeframe for occurrence was dependant on a strong reluctance by the profession to change the status quo. Analysis of the impact of COVID-19 on the legal profession including the execution of legal documents, provides insight into areas for improvement going forward and whether a regulatory overhaul is required. This research shows that, although there are a number of advantages to the implementation of smart legal contracts using blockchain technology, there still remains numerous implementation and regulatory concerns that need resolution if smart legal contracts are to be widely used.
Patraus, Mihaela Elvira and Ionita Maria Ofrim, ‘Contractual Unpredictabiliy in the Context of Covid-19 Pandemic’ (2021) 7(4) Athens Journal of Law 485–505Jurisdiction: Romania
Abstract: The new realities require a revitalisation of the legal system to overcome the effects of the Covid-19 pandemic. The current health crisis is, at the same time, a challenge not only for public authorities, but also for the scientific community and legal practitioners, concerned with finding viable solutions for the adaptation of legal institutions. For the legal system, the contract is an essential factor from a theoretical and practical point of view, an indispensable element for the sphere of private law; it is an essential piece of evidence that lawyers will support in the face of new challenges posed by the current pandemic context. In this article we have in view an objective analysis of the contractual contingency, starting from the jurisprudential consecration that was conferred under the previous regulation and until the introduction of this institution in the national legislation with the entry into force of the new Romanian Civil Code in 2011. We intend to present a brief retrospective on the theory of unpredictability and will discuss the regulation found in national law, as well as the existence of this institution in comparative law. In a dynamic social and economic context, it is essential to clarify the relationship between the binding force of contracts and the possibility of invoking unpredictability, in situations where certain changes affecting the contractual balance occur in the performance of obligations. At the same time, as a case study, we will try to answer the question whether this institution finds its applicability in the most debated issue at legal, national and international level in the current period, namely the effects on contractual relations, generated by the Covid-19 pandemic and the measures taken by public authorities to limit the effects of the virus on human health. In the sphere of performance of contractual relations, in progress at the time of the pandemic, a multitude of controversies have been created, regarding the possibility of invoking, as the case may be, force majeure, fortuitous event or unpredictability and in this article we will highlight to what extent the parties have these remedies at hand. Last but not least, the study will highlight the jurisprudential orientation due to the significant changes suffered in the current social and economic context amid the Covid-19 pandemic, respectively if the institution of unpredictability comes to help the contracting parties to save the contracts concluded before the pandemic which have been affected in the context of the measures and restrictions taken by each state.
Peari, Sagi and Zamir R Golestani, ‘A Theory of Frustration and Its Effect’ (2022) 43(2) Liverpool Law Review 263–285 Abstract: One of the key legal questions that COVID-19 has raised relates to the status of the traditional contractual doctrine of frustration. The pandemic and the ongoing lockdowns across the globe have made it difficult for many contracts to perform. At the same time, there is a deep doctrinal and conceptual confusion with respect to the very essentials of this doctrine and its remedy - i.e., what happens after an adjudicative tribunal declares that a given contract has been frustrated. The paper offers a unified conceptual account of the frustration doctrine and claims that both the doctrine and its remedy crystallize a single unifying idea.
Pédamon, Catherine and Radosveta Vassileva, ‘Contractual Performance in COVID-19 Times: Does Anglo-French Legal History Repeat Itself?’ (2021) 29(1) European Review of Private Law 3-38 (pre-print) Abstract: The Severe Respiratory Syndrome Coronavirus 2 (COVID-19) pandemic has dealt a universal challenge to contractual performance, but legal systems have responded differently. In this article, we focus on two jurisdictions with distinct paths of development – England and France – to examine if they have drawn from their own legal history to craft solutions to this challenge and to consider if either has bettersuited tools to address it. Notably, the UK has refrained from intervening in the area of contract law, thus relying on long-standing common law doctrines and equitable remedies, while, in France, the government has intervened with a series of ordonnances providing contracting parties with new tools tackling difficulties of performance, which add to the existing arsenal in the Code civil. The article demonstrates that the responses to the COVID-19 challenge by England and France have historic roots and illustrate important legal cultural differences vis-à vis state intervention in the area of contract in trying times. Moreover, even though, at first glance, parties contracting under French law have more tools balancing freedom of contract and fairness, a closer look reveals that over protection or under protection may lead to the same outcome for contractual relationships on both sides of the Channel. Ultimately, in both countries, parties seem better off settling their disputes themselves, away from the courts.
Philippe, Denis, ‘Coronavirus: Force Majeure? Hardship? Deferral of Obligations? Some Practical Elements Advice for the Analysis and Drafting of Clauses’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: This article analyses whether the coronavirus crisis can lead to the application of the doctrine of force majeure; the different conditions of application of force majeure are discussed (non-accountability, unforeseeability and impossibility) as its effects which are not defined clearly by the literature and the case law. This article gives some hints for the drafting of force majeure clauses. Of course pandemics must be mentioned in the circumstances constituting force majeure. Then, the possibility to find alternatives in case of non-performance must be considered; finally, a renegotiation of the contract can be organised in the force majeure clause. The article also analyses the doctrine of unforeseen circumstances and the drafting of hardship clauses. Finally this article mentions the corona principles of the European Law Institute which recommends a renegotiation of the contract following the corona crisis.
Radhi, Hassan Dakel Abd, ‘The Legal Nature of the COVID-19 Pandemic and Its Impact on Contractual Obligations Applied in Human Rights’ (2021) International Journal of Human Rights in Healthcare (advance article) Abstract: Under international human rights law, states can limit the exercise of most human rights if it is necessary to protect the rights of others or collective interests. The hazards of epidemics and diseases have raised many legal, economic and social issues in their link with global health security, which renew the discussion regarding the effects of the COVID-19 on some civil and commercial transactions and financial and tax obligations. Therefore, the purpose of this paper is to discuss the effects of COVID-19 on contractual obligations.
Rahmana, Syed Ahmed Khabir Abdul and Saiful Akmal Suhaimi, ‘The Legal Implications of Covid-19 in Malaysia: Selected Issues’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 125–131 Abstract: The COVID-19 pandemic is making the world apparent by its devastating character. The pandemic has affected people physically and mentally; the court institutions and the business world are not an exception. The pandemic has undoubtedly impacted business operations worldwide, particularly in countries with a more critical scale of contagion. To help flatten the curve of infection, Malaysia has imposed an aggressive movement control order (MCO) nationwide, effective from March 18, 2020. This paper provides prospective readers on the impact of COVID-19 on the court institutions and contractual obligations in Malaysia. With the enforcement of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020, also known as the COVID-19 Act, relevant provision in several statutes have been modified for temporary measures to reduce the impact of Coronavirus Disease 2019 (COVID-19) in Malaysia. This paper uses doctrinal legal research to study the impact of COVID-19 pandemic in Malaysia, mainly based on library research, whereby a qualitative analysis is adopted to assess improvements of the law in Malaysia concerning court institutions and contractual obligations amid COVID-19 crisis. This paper aims to provide information on the adaptation of court institutions and the law governing contractual obligations in Malaysia amid the global pandemic. This paper also aims to provide an overview of the measures taken by the Malaysian Government in response to COVID-19. The authors would like to acknowledge the efforts and dedication of all front liners during this COVID-19 crisis. To all those who have experienced difficulties during the pandemic, always remember you are not alone.
Ramezani, Elahe et al, ‘Jurisprudence and Legal Review of Contract Termination Due to Pandemic’ (2024) 12(24) Civil Law Knowledge [pagination unknown] Abstract: Regarding the impact of external factors on the fate of the contract, depending on its characteristics, there are different views. Some of them consider it as an excuse and believe that the contract is null and void, and a group of people have proposed rescission through the dissolution of the contract due to coercion in order to prevent losses. Some also consider the right of termination to be efficient by emphasizing the combination between the need to prevent loss and maintaining the principle of necessity. Considering that pandemic in the concept of epidemic caused by infectious diseases has characteristics; Contingency, unpredictability and inevitability make it impossible to fulfill the contractual obligations in general or sometimes temporarily, not always. Pandemic is a synonym of the word Jaeha which means heavenly calamity, as a result of which, the purpose and purpose of the contract becomes impossible. In this article, an attempt has been made to analyze the issues related to it in terms of its impact on the dissolution of the contract from a jurisprudential and legal point of view by means of a descriptive-analytical study through the collection of information in a library manner and by using a comparative approach, along with the concept of pandemic.
Rashi, Tsuriel and Andrew A Schwartz, ‘Contracts Capsized by COVID-19: A Legal and Jewish Ethical Analysis’ (2021) Journal of Business Ethics Advance article, published 4 March 2021 Abstract: Countless contracts have been undermined by the COVID-19 pandemic of 2020 as well as government orders to contain it. Flights have been canceled, concerts have been called off, and dorms have been closed, just to name a few. Do these all count as breaches of contract—or are the parties excused due to the extraordinary circumstances? And how should the losses be allocated between the parties? The law provides one set of answers to these questions; ethics offers another. With a focus on American law (developed over the past two centuries) and Jewish ethics (developed over millennia), this paper shows that the two systems are in accord with some respects and differ in others: Both law and Jewish ethics would excuse a party who cannot complete his contract due to a force beyond his control, like the COVID-19 pandemic. Yet Jewish ethics would require that the excused party still be paid, while American law would not.
Rubí-Puig, Antoni, ‘Coronavirus’ Impact on Broadcasting Rights for the Spanish Professional Football League’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The spread of SARS-CoV-2 and the measures adopted by public authorities to prevent health risks posed by COVID-19 led organizers of sport events worldwide to cancel all ongoing competitions. The Spanish Professional Football League or ‘La Liga’ was suspended for almost three months, and pending matches for the 2019-2020 season have now resumed with a new and tight calendar. Such unexpected changes in the championship have undoubtedly diminished the value of La Liga broadcasting rights and have generated losses to their national and international holders. This contribution discusses the application of Spanish contract law to identify any possible claims that broadcasters could have to seek some relief. On close inspection, it is unlikely that broadcasters could enjoy any remedies to claim damages, to terminate their payment obligations or to adjust their contracts with La Liga’s organizer. However, due to the particularities of the football broadcasting market, voluntary renegotiation of contracts is expected to occur.
Sahni, Aseem, ‘Coronavirus Pandemic (COVID-19): Invoking Force Majeure and Doctrine of Frustration: An Analysis From an Indian Law Perspective’ (2020) 48(3) International Journal of Legal Information 132–136 Abstract: The on-going global Coronavirus disease (‘COVID-19’) pandemic, has affected a countless number of people around the world, businesses, and the global economies alike and is certainly nothing short of a ticking time bomb. On March 11, 2020, the World Health Organization declared COVID-19 a pandemic after noting that COVID-19 has increased 13-fold in countries other than China. A few state governments in India have also termed COVID-19 as an epidemic. In testing times like these, India, currently amidst an unprecedented nationwide lock-down, which has subsequently been extended until May 3, 2020 and has resulted in a temporary or partial shutdown of most business(es)-in India—whether they be small, medium or big business houses, with the exception of only a list of services notified by the relevant governmental authorities which have been deemed to be and are categorized as ‘essential services’ and allowing functioning of select additional activities (such as allowing manufacturing activities in certain sectors to take place), which have also only been permitted to start from April 20, 2020.
Salwi, Sonal, ‘COVID-19: Complicating Contractual Performance’ (2021) 18(2) Transnational Dispute Management (TDM) [unpaginated] Abstract: COVID-19 and the governments’ restrictions on curbing the pandemic have severely impacted parties’ abilities to fulfil their contractual obligations. Parties have thus turned to their commercial contracts to evaluate if the force majeure clauses potentially permit them to excuse or limit contractual performance instead of being in breach for non-performance. This comparative analysis highlights the approach taken by courts in England, France and the State of New York in interpreting the common law defences of force majeure, frustration and hardship in relation to past epidemics.
Scala, Vincent, ‘Changes to Material Adverse Effect Clauses Following Major Events: Evidence From COVID-19’ (2022) 95(2) St. John’s Law Review 549–579 Abstract: Part I of this Note explains the elements and purposes of MAE clauses and examines past studies to show how parties have historically allocated risks following major events. Part II argues that this evolution of contracting is significant, especially in light of COVID-19. To quantitatively and qualitatively assess COVID-19’s impact on contract terms, this Note reviews a sample of publicly-available merger and acquisition (‘M&A’) agreements from November 2019, February to May 2020, and August 2020. Based on this study, this Note argues that parties with negotiating power allocate known risks to increase the likelihood of deals going through, which effectively reserves MAE clauses for the unknown.
Schanze, Erich, ‘Best Efforts in the Taxonomy of Obligation: The Case of the EU Vaccine Contracts’ (2021) 22(6) German Law Journal 1133–1145 Abstract: The purchase of Covid-19 vaccines by the EU Commission as agent for the Member States has caused substantial political discussion, including a lawsuit against the producer AstraZeneca in Brussels in 2021. The article looks at these purchase contracts as examples for a problematic use of “best efforts“ clauses in commercial contracting, considering some key jurisdictions. The clauses are discussed from a drafting perspective, including their function and their theoretical background in comparative law. It concludes with a primer for the drafting process, looking at some basic contracting schemes for softening or intensifying obligations.
Schmidt-Kessel, Martin and Christina Möllnitz, ‘Particular Corona Contract Law in Germany : Why Does General Contract Law Not Suffice?’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: In order to handle the economic consequences of the COVID-19-pandemic, the German legislator has issued a number of specific rules for certain contracts for a limited period of time. The fact that legislation saw the need for such measures raises the question whether established German contract law is not sufficient to deal with the consequences of a large-scale crisis. This essay therefore outlines in a first step how the rules of general contract law in Germany apply to contracts affected by the COVID-19-crisis. The second step is dedicated to an analysis of the interaction between the particular rules within the emergency regulation and the general contract and will conclude with some first tentative answers to the general question concerning the reasons to amend German law by the Corona Contract Law legislation. :
Schwartz, Andrew A, ‘Contracts and COVID-19’ (2020) 73(July) Stanford Law Review 48–60 Abstract: The COVID-19 pandemic of 2020—as well as government orders to contain it—has prevented countless people, babysitters to basketball players, from fulfilling their contracts. Are all of these parties legally liable for breaching their contracts? Or are they excused due to this extraordinary event? What about payments made in advance, such as tickets bought for a concert that has now been canceled, or a dorm room leased at a college that is now closed? This coronavirus is new, but wars, floods, and even other pandemics have upset innumerable contracts over the years. In response, our courts have established a fairly clear set of legal rules—most importantly the doctrines of ‘Impossibility’ and ‘Restitution’—to answer these questions. Beyond that, contracting parties can, and often do, ‘contract around’ these legal doctrines by including a ‘Force Majeure’ clause, which specifies what should happen in case of an ‘Act of God’ like the coronavirus. Part I of this Essay will describe the legal doctrines of Impossibility and Restitution and how they might apply to a contract undermined by the COVID-19 pandemic. Part II will explain how a Force Majeure clause alters those background doctrines to give—or withhold—relief to a party whose performance has been thwarted by the pandemic. Finally, Subpart II.C will peer into the future and predict that many parties will likely revise their Force Majeure clauses to ensure they cover a pandemic like this. While such a revision may seem obvious from a legal perspective, it may not be optimal from a business perspective, as it may lead counterparties to greatly lower the price they are willing to pay—or even refuse entirely to make a deal. Indeed, some parties may conclude that the default Impossibility doctrine provides better protection than a Force Majeure clause, as it covers any and all unexpected cataclysms, not just those expressly listed in the contract.
Scognamiglio, Claudio, ‘Relevance of the Contractual Solidarity at the Times of Pandemics’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The essay aims to outline, in a general perspective, the different possible strategies to respond from the normative point of view to the consequences, direct or indirect, on the contractual relations of the pandemic COVID-19: a solution entrusted to the jurisprudential law seems appreciable for its elasticity, but the requirements of certainty and predictability appear preeminent to be assured only by the legislative intervention.
Setear, John K, ‘Covid, Contracts, and Colleges’ [2023] West Virginia Law Review (forthcoming) Abstract: This Article examines the legal issues underlying hundreds of lawsuits, claiming unjust enrichment or breach of contract, brought by students who paid full tuition to institutions of higher education but who, because of COVID, did not receive the full complement of in-person instruction. The Article advances three fundamental conclusions. First, the law governing liability favors students, especially because of the starkness of the breach or deprivation visited upon them. Second, the law governing damages favors the educational institutions, especially because COVID caused colleges to unbundle certain aspects of their services that they have historically only provided simultaneously with high-quality faculty and plentiful opportunities for students to interact intellectually. The recency of that unbundling hinders a market-oriented evaluation of the component values and thus reduces the chances of an award of damages to the students. Third, this rapid unbundling reveals a difficulty—which can extend beyond the specifics of colleges offering education in a time of COVID—in the law’s pervasive use of market-oriented measures of damages even when change in the marketplace is rapid and improvisational. The Article hopes to bring clarity to an area where courts have not ruled consistently and no trials have occurred, and where scholars have examined the effects of COVID on contracts only at a much more general level.
Shebaita, Maged, ‘The Impact of COVID-19 on the Performance of Administrative Contracts in Egypt Comparative Study’ (SSRN Scholarly Paper No ID 3638076, 29 June 2020) Abstract: Any country undertakes several actions to fulfill the public needs of it’s people or to achieve economical and financial targets. One of the most famous actions is contracts, the state is usually engaged in several contractual relationships to achieve the aforementioned targets. In Civil Law countries, the Administration concludes two types of contracts, Public Law Contracts and Private Law Contracts. The overwhelming opinion in the Egyptian Administrative Law, jurists and judgments are that there are 3 main criterion to distinguish administrative contract from civil and commercial contracts, which had been explained in the judgment of the Supreme Administrative Court ‘It is recognized that the Administrative Contract is the contract concluded by a public law person with the intention of managing of public utility and for showing its intention to adopt the Public law method, which includes a clause or conditions that are unfamiliar to private law contracts.’ . Through the performance of Administrative Contracts certain obstacles appeared, some of them are foreseeable and others unforeseeable. After the announcement by WHO on 13th March 2020, that COVID-19 is a pandemic, several states declared the state of emergency due to the outbreak of COVID-19 which caused many economical and financial disasters, to both public and private sectors. In this research I will focus on the outbreak of COVID-19 as unforeseeable events which led to overturn the financial and economical equilibrium of the Administrative Contract in Egypt. This is what we will illustrate together in the following pages.
Sherman, John, ‘The Contractual Balance Between ‘Can I?’ and “Should I?” Mapping the ABA’s Model Supply Chain Contract Clauses to the UN Guiding Principles on Business and Human Rights’ (Harvard Kennedy School, Corporate Social Responsibility Initiative Working Paper No 73, 2020) Abstract: This paper examines the efforts of the American Bar Association to draft proposed Model Contract Clauses for businesses that prohibit modern slavery and child labor in supply chain contracts. This involves a careful balancing of a buyer’s desire to avoid consuming goods manufactured with human rights abuse and its desire to protect itself legally, in order to ensure that the company is acting in alignment with its responsibility to respect universally recognized human rights under the UN Guiding Principles on Business and Human Rights. This subject is quite timely in light of the current efforts of many companies, in response to the COVID-19 pandemic, to exercise force majeure clauses in their contracts to dump suppliers without regard to the impacts of vulnerable workers in their supply chains.
Shetty, Smaran and Pranav Budihal, ‘Force Majeure, Frustration and Impossibility: A Qualitative Empirical Analysis’ (SSRN Scholarly Paper No ID 3665213, 1 August 2020) Abstract: A concluded contract may be rendered incapable of performance for a variety of reasons. The incapability of performance raises a variety of important legal questions: Is the claim of incapability acceptable to the counterparty? If not, does the claim meet the standards of force majeure and/or frustration? Does the contract between the parties address the grounds of incapability? Whether performance may be excused without the levy of damages? Towards that end, this report attempts to draw attention to the core issues in making and resisting a force majeure claim, key decisions of the Supreme Court that have settled the parameters of force majeure, frustration and impossibility and important advancements made by the High Courts. We also offer insights into allied issues in making a force majeure claim that have bearing on the timing, forum and terms on which a force majeure claim may be made. This report thereafter proceeds to offer empirical insights of the Supreme Court as well as 6 high courts – Delhi, Bombay, Madras, Karnataka, Allahabad and Calcutta. In presenting this information, we assemble a qualitative set of cases that have decided and applied the law on force majeure, frustration, and impossibility. We offer insights into the number of successful force majeure claims and common force majeure events.
Shoor, Sahil, ‘COVID-19: What Happens If Your Contract in Canada (Excluding Quebec) Does Not Have a Force Majeure Clause.’ [2020] Lawyer (Online Edition) 1 Abstract: The article offers information on the health challenges faced by the coronavirus outbreak in the Canada. It discusses the declaration of the coronavirus outbreak as a global pandemic by the World Health Organization. It mentions the role of the force Majeure clauses protect the person in times of extreme events, such as Coronavirus outbreak in the Canada.
Silva, Marta Santos and Tomàs Gabriel García-Micó, ‘COVID-19 and Contract Law’ in Jan M Smits et al (ed), Elgar Encyclopedia of Comparative Law (Edward Elgar, 2023) 472–483
Sirena, Pietro and Francesco Paolo Patti, ‘Hardship and Renegotiation of Contracts in the Prospective Recodification of Italian Civil Law’ (Bocconi Legal Studies Research Paper No 3706159, 2020) Abstract: The aim of the present essay is to analyse the new normative proposal on change of circumstances and to shed light on its scope of application, its potentialities and its shortcomings. The first part will indicate the reasons why a modification of the existing law is needed, also in consideration of the COVID-19 crisis and the difficulties in finding a fair solution capable of balancing the parties’ interests in ongoing contracts (B.). The contribution will then devote attention to the comparative background, as the problem of supervening events gave rise to several legislative interventions, not only in the European context (C.). A detailed scrutiny of the proposed Italian provision on change of circumstances will follow, with respect to the systematic relationship to other remedies and the requirements for its application (D.). Finally, the paper offers some conclusions (E.).
Snyder, David V, ‘Contracting for Process’ (2021) Law and Contemporary Problems (forthcoming) Abstract: This paper introduces the concept of contracting for process and considers when it is likely to be the best contract design. Some characteristics of contracting for process suit it particularly well to situations of uncertainty, including the radical uncertainty that results from fundamental disruptions such as covid-19. The concept introduced here, however, is not limited to contexts of uncertainty or complexity; it can be used to achieve a variety of objectives and to solve a number of problems. Notably, and perhaps surprisingly, the concept is not limited or even necessarily associated with relational contracting, quasi-integrated contract manufacturing, managerial contracting, contracts for innovation, or the like. Contracting for process is well suited to many discrete contracting contexts and is indeed in widespread use, although we fail to notice. This paper aims to observe a contracting practice that has not been articulated, to distinguish it from contract designs and theories of contract that obscure contracts for process, and to assess how contracting for process is better or worse suited to different parties, transactions, and contexts, particularly in times of crisis.
Sousa Antunes, Henrique, ‘Portugal’s COVID-19 Legislation and the Challenges Raised for the Change of Circumstances Regime’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: During the recent period of Portugal’s financial bailout, following the severe effects of the global financial crisis of 2008, the courts demonstrated a clear reluctance to accept claims for contract termination or modification due to change of circumstances. Within this framework, the Portuguese legislator’s responses to the pandemic raises challenges for the change of circumstances regime. The legislative activity to which COVID-19 has given rise tests the traditional understanding regarding the foundations of the institute, certainly with regard to cases related to the pandemic, but also regarding situations of unenforceability with different grounds.
Stanley, Otieno Omondi, ‘The Doctrine of Force Majeure’ (SSRN Scholarly Paper No 4496031, 30 June 2023) Abstract: This paper seeks to explain the doctrine of force majeure and highlights cases where it has been successfully and unsuccessfully been used as a defense for breach of contract. The center of this paper is on the landmark judgement issued by the Kenyan Court of Appeal which recognized COVID 19 as a force majeure event.
Stevens, Shawn K, ‘COVID-19: Contractual Protection of “Force Majeure” Clauses’ (2020) 234(4) National Provisioner 8–10 Abstract: The article discusses the impact of COVID-19 pandemic on contractual obligations which contains force majeure clauses. Topics discussed include the common-law doctrine of supervening impracticability, the restatement of Contracts and common contractual clause that discharges parties of their performance obligations.
Stevenson, Douglas, ‘Shutdown, Frustration & Property Contracts’ (2020) 233(Spring) Writ 25–26 Abstract: Considers the doctrine of frustration as it applies to property contracts during the COVID-19 crisis. Refers to cases on war-time frustration and their application to leases and contracts for the sale of land. Suggests that the concept of partial excuse for breach of contract may be applicable.
Sugiastuti, Natasya Yunita, ‘Force Majeure as a Justification for Failure to Fulfill Contractual Obligations Due to the Covid-19 Pandemic: Suspending or Terminating Contract?’ (Proceedings, 3rd International Conference on Law Reform, 2022) 202–218 Abstract: As a result of the Covid-19 pandemic, large debtors experienced performance failures so that the President of the Republic of Indonesia designated Covid-19 as a non-natural disaster and a national disaster in Presidential Decree (Keppres) No.12/2020. The Civil Code has provided rules to anticipate failure to contractual obligations caused by circumstances beyond the parties’ ability through measures of defense against non-performance on the grounds of force majeure. The problem lies in whether the parties impeded in carrying out contractual obligations can use Presidential Decree No.12/2020 as a cause for force majeure. This study examines whether Presidential Decree No. 12/2020 meets the criteria for force majeure as regulated in the Civil Code. This research is normative legal research examining the legal norms regarding force majeure regulated in Articles 1244 and 1245 of the Civil Code. The researcher deployed legislation as primary legal material and legal doctrine as secondary legal material. Data were obtained through literature studies incorporating electronic textbooks attained through the google scholar search engine. The data were analyzed qualitatively, and conclusions were drawn based on deductive reasoning. The results indicated that Presidential Decree No.12/2020 is a fact that does not require proving. However, the event of force majeure alone is an inadequate cause for non-performance; instead, causality between the force majeure and the failure to perform must be proved. Similarly, it also needs to be confirmed that the debtor acts in good faith. In concrete cases, judges have the authority to perform the primary function of good faith by either suspending the performance of contractual obligations or terminating contractual relations and determining the responsibility of bearing the risks caused by force majeure.
Suryamizon, Anggun Lestari, Kartika Dewi Irianto and Mahlil Adriaman, ‘The Legal Power of Electronic Contracts and as Evidence In Default during the Covid-19 Pandemic in Indonesia’ (2022) 3(1) Indonesian Journal of Law and Policy Studies 32–45 Abstract: An agreement is a legal act that will create a legal relationship between one legal subject and another to fulfill an achievement. In Indonesia, in general, people carry out business activities accompanied by a written agreement or what is commonly referred to as a contract. At this time, Indonesia is being affected by the Covid-19 virus and has become a national disaster. With this national disaster, it has greatly affected the lives of the Indonesian people, especially in the business sector, in which the implementation transaction must be accompanied by a contract where each business transaction will certainly experience a decline and setback which will result in many parties involved in the contract unable to fulfill their achievements. Especially when the current conditions of many parties agree to their agreement by using electronic contracts to anticipate the possibility of the spread of the corona virus. This study aims to (1) find out how the implementation of electronic contracts during the pandemic, and (2) how the validity and strength of electronic contracts. This research is very interesting to study because electronic contracts are new in the world of contract law, and it examines more deeply how the proof will be and its legal strength when there is default in the implementation of the electronic contract. The method used is juridical normative. This study will provide an explanation of the legal strength of electronic contracts, and how the strength of proof is in case of default.
Tay, Eu-Yen, ‘Frustration, Not Fortitude: The Case for Applying the Doctrine of Frustration to Leases Affected by COVID-19’ (SSRN Scholarly Paper No ID 3621875, Social Science Research Network, 8 June 2020) Abstract: The impact of the COVID-19 pandemic on retail businesses raises the pertinent question of whether commercial leases can be deemed to be frustrated, so that tenants may be released from their rental obligations. Focusing on the plight of restauranteurs, but relevant to the retail sector in general, this paper discusses the doctrine of frustration with respect to restaurant leases affected by the COVID-19 crisis. It puts forward the view that the doctrine does, and should, apply to these leases in these COVID-19 circumstances, not least because in spite of Government relief measures, frustration may be the only way out for restauranteurs.
Thanvi, Irfan Ali, ‘UAE Legal Amendments During the Covid-19 Pandemic’ (2022) 7 Law & Political Review 109–127 (see pages 110-113) Abstract: The pandemic known as COVID-19 has taken the entire globe with a blast. The outbreak which initiated in December 2019, has been reported to have spread across six continents of the world in just a single quarter. The UAE like many other developed countries of the world is trying its best to curb any further spread of the novel virus. Unfortunately, some sectors of the society have taken this situation to work in their vital interest to fulfil ulterior motives, while some others, due to the oblivion of the UAE law get jeopardized by the same token. This negligence on part of several people may turn costly. Hence, I as a lead author on UAE laws decided to research the entire scenario and provide certain plausible legal solutions to our valuable audience. The regulations of the UAE have drastically been amended during the current pandemic of COVID-19, enabling loads of revisions to existing laws. One of the most important issues during the lockdown has been to regulate food supplies and garner stocks. This has been an ancient practice but was never instituted under the prevalent laws of the UAE, as there was never a need for such an occurrence. Ever since the outbreak of COVID-19, as the UAE went under a complete lockdown, changing the world of all residents in a dramatic way. This book covers significant discussion on the impact of the pandemic on all walks of life including but not limited to education, health care, employment, trading, court procedures and many more. At Amazon Inc, we are trying our level best to apprise the public of the latest developments in various sectors due to the outbreak of the pandemic. Nonetheless, a disclaimer for the audience about these rules and regulations may be altered through the process of time.
Torsello, Marco and Matteo M Winkler, ‘Coronavirus-Infected International Business Transactions: A Preliminary Diagnosis’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 396-401 Abstract: Extract from Introduction: Since the very start of 2020, international business actors have become increasingly concerned with the ‘viral exceptionalism’ caused by the various governmental pandemic-mitigation restrictions (PMRs) enacted in response to COVID-19….. in all jurisdictions the issue arises as to the impact of COVID-19 on the ability of the parties to duly perform their contractual obligations. This circumstance is not confined to domestic settings, but extends to international business transactions, where the risks arising both from pandemics and from the subsequent PMRs are typically regulated through appropriate force majeure clauses. However, unlike the corresponding national provisions regarding force majeure, which tend to exclude the party’s liability for failure to perform, the above-mentioned clauses regulate the effects of force majeure events in several different fashions by offering the parties ways to preserve their contractual relationships. This article offers a threefold analysis of force majeure clauses in light of PMRs. First, it proposes an overview of force majeure clauses and their effects. Second, it assesses the possible use of such clauses in relation to PMRs. Finally, it examines the possible extraterritorial reach of such PMRs.
Tsang King Fung, Dicky, ‘From Coronation to Coronavirus: Covid-19, Force Majeure and Private International Law’ (2020) 44 Fordham International Law Journal 187 Abstract: This Article aims to facilitate the understanding of the interlocking nature of COVID-19, force majeure, and private international law, and seeks to analyze the private international law issues that are expected to arise in COVID-19 related force majeure cases. As both force majeure and private international law are national laws, this Article illustrates the relevant issues by comparing both sets of laws between England, the place of origin of modern force majeure law and frustration in common law jurisdictions, and China, the jurisdiction that has the most experience in dealing with force majeure related to coronavirus.
Twigg-Flesner, Christian, ‘A Comparative Perspective on Commercial Contracts and the Impact of COVID-19 - Change of Circumstances, Force Majeure, or What?’ (SSRN Scholarly Paper No ID 3582482, 22 April 2020) Abstract: This paper sets ouf the role of force majeure clauses and legal rules on post-formation unforeseen circumstances in the specific context of the COVID-19 pandemic, from a comparative and international commercial law perspective.
Twigg-Flesner, Christian, ‘The COVID-19 Pandemic: A Stress Test for Contract Law?’ (2020) 9(3) Journal of European Consumer and Market Law 89–92 Extract: The consequences of this crisis have raised many legal issues, particularly for consumer and commercial contracts. For example, many consumers who prepaid for services to be provided at a later date (such as flights, accommodation, or venues for family celebrations) have struggled to obtain refunds from their service providers, with many offering vouchers instead in an attempt to preserve some of their cash reserves, thereby inadvertently turning consumers into unsecured lenders to business. Moreover, businesses and consumers with long-term loans or rental commitments may not be able to keep up their contractual instalment payments, and face being in default and, at worst, being evicted from homes or retail premises. Many long-term contracts, whether for the regular supply of goods or services or subscription-style contracts, cannot be performed on time, with performance either suspended or at least subject to delays. There are many other ways in which the crisis and its consequences have affected the performance of contracts, but this brief account suffices to set the scene. The central legal issue in respect of contracts can be boiled down to one seemingly simple question: what is the impact of the crisis and its consequences on the rights and obligations of the parties to a contract which can no longer be performed as expected? However, answering that question is far from simple and will depend on the reason why, and the extent to which, a contract can no longer be performed as expected, the relevant rules of the governing law which provide relevant legal solutions in respect of that reason, and any contract terms which might cover the circumstances which have arisen.
Twigg-Flesner, Christian, ‘The Potential of the COVID-19 Crisis to Cause Legal Disruption to Contracts and Contract Law’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: This paper explores whether the COVID-19 crisis has the potential to cause legal disruption to the legal regime for contracts. It first sketches features of the COVID-19 crisis and its effect on the economic and social context of contracts, before setting out a four-step methodology to categorise legal responses to the crisis. It then develops a specific conception of legal disruption, based on Christensen’s theory of disruptive technology, which posits that legal disruption occurs once the pre-crisis legal regime for contracts (whether entirely or partially) is displaced by new provisions first targeted at the effects of the crisis. It concludes that the crisis has the potential to cause legal disruption but that this outcome is not inevitable.
Ussher, Blair, ‘Foreseeability and the COVID-19 Pandemic’ [2022] (March) LIJ (Law Institute Journal) 20–23Jurisdiction: Australia
Abstract: The foreseeability of frustrated contracts has particular relevance with the covid-19 pandemic as the party seeking to rely on this doctrine will be confronted by the fact that, at least from early 2020, the pandemic’s impact on commercial activity was foreseeable.
Vaquer, Antoni, ‘Prescription and Lapse of Rights under the Spanish State of Emergency’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: This paper discusses the regulation contained in the Royal Decree establishing the state of emergency in Spain on suspension of the running of the periods of prescription in a private law system that does not have a general rule on suspension. Since the Spanish legislator has suspended the running of the periods for all citizens and claims as long as the emergency state has been in force, it is questionable whether this solution is efficient in terms of protection of people that, because of illness caused by COVID, are unable to pursue a claim once the emergency state has come to an end. Moreover, the Spanish Civil Code still distinguishes usucapio inter presentes and usucapio inter absentes, the latter requiring a longer period, but the Royal Decree does not contain any rule on acquisitive prescription.
Vorotyntseva, Inna, Ivanna Hranina and Maryna Pysarenko, ‘Comparative Legal Research on Contract Law Changes Under Covid-19 Pandemic: England, United States, Asia and Ukraine’ Ius Humani | Law Journal (2021) 10(1) Ius Humani | Law Journal 123–150 Abstract: The study aims to characterize the changes in contract law under the influence of the Covid-19 pandemic in Ukraine and the world. For this purpose, we used systemic, comparative-legal, and formal-legal methods. The paper consists of an introduction, methodology section, bibliography review, results, discussion, conclusions, and references. In the result of the study some distinctive features of changes in contract law under Covid-19 pandemic at the level of national law of Ukraine and some foreign countries were characterized and highlighted. The authors came to the conclusion that changes in contract law are typical for the countries of continental law. Instead, common law states remain resistant to changes in contract law, particularly, the force-majeure application. The reason for this lies in the specific doctrine of the common law countries, as England and the United States. These countries’ courts remain unshakable in terms of managing the contracts performance. In contrast, some Asian and European states (including Ukraine) are characterized by dynamic changes in legislation, given the pandemic situation. The paper also discusses similar institutions like hardship and frustration of purpose, which are both applicable in continental and common law countries.
Vyas, Dhaval, ‘Extension of Limitation Period Due to COVID’ (2021) 4(6) International Journal of Law Management & Humanities 169–190 Abstract: Ever since the world is gripped in the clutches of the COVID-19 Pandemic, there have been global and local consequences. Countries all over the world had to come to terms with new challenges in their daily transactions at all levels. Commerce, Trade, and Industry too did not remain absolved from its effects. Businesses all of a sudden came to a standstill with the pan country directives of absolute restriction in movement of the people, except the essential services professionals and they too had a very restrictive movement and precautions. Many business transactions came to an abrupt stand-still due to the absence of manpower. They were unable to carry out their part of the transaction due, thereby invoking frustration of the contract entered into. It is in this backdrop one has to consider how within how long a time was one allowed to perform their end of the contract with a focus in freeze during the Pandemic and the subsequent extension of the Limitation Period based on Supreme Court of India’s Order in 2020-21.
Wałachowska, Monika and Michał P Ziemiak, ‘Impact of the COVID19 Pandemic on Patient Rights and Contract Law: Selected Problems’ in Frydrych-Depka, Anna, Maciej Serowaniec and Zbigniew Witkowski (eds), Pandemic Poland: Impacts of Covid-19 on Polish Law (Vandenhoeck & Ruprecht, 2021) 213
Wang, Yi, Mimi Zou and Zhicheng Wu, ‘Force Majeure and Covid-19: A Critical Assessment of Key Issues under the Chinese “Civil Code”’ (2022) 38(1) Journal of Contract Law 61–78 Abstract: In 2020 Covid-19 and related prevention and control measures brought significant disruptions to commercial transactions globally, which have seen the force majeure doctrine invoked in many resultant contractual disputes. In China the tumultuous year of 2020 also saw the enactment of the long-awaited Civil Code, a historical milestone in its legal system. This paper analyses how the Civil Code and recent guiding opinions of the Chinese Supreme People’s Court address key issues of contract law concerning force majeure and the related doctrine of change of circumstances as applicable to Covid-19 related contractual disputes. We conclude that force majeure provisions will be cautiously applied by Chinese courts in this context, while change of circumstances is likely to be apply in more cases as it provides courts with the flexibility to modify the parties’ contractual obligations.
Wiewiórowska-Domagalska, Aneta, ‘When Pandemic Meets Politics: Corona Contract Law in Poland’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: This article presents and critically evaluates the impact of the COVID-19 pandemic on Polish contract law. Since the government refrained from introducing the state of emergency to manage the pandemic in Poland in violation of the Constitution, the constitutional dimension of the COVID-19 measures is of crucial importance also for the contract law examination, as it substantially changes the position of the parties of private law relations. The article therefore gives an overview of the measures introduced as a response to the COVID-19 emergency in the constitutional context, presents the classic Polish private law instruments potentially applicable to contracts in extraordinary circumstances like pandemic as well as the extraordinary legislation introduced by the government in the area of contract law, with a view to addressing the pandemic. It ends by presenting the first cases initiated by private parties against the State Treasury.
Wijerathna, Yasoda, ‘Non-Performance of Contractual Obligations in International Commercial Contracts in the Wake of Coronavirus: A Legal Perspective’ in Conference Paper, 3rd Research Conference on Business Studies (2020) 258–261 Abstract: The rapid growth of the Coronavirus disease (COVID-19) has undoubtedly impacted business relations worldwide, leading to significant consequences caused by the non-performance of international commercial contracts. Given the circumstances, the current study scrutinises how the international commercial law can provide relief to for non-performance of contractual obligations due to the impact of the COVID-19 crisis through legal instruments such as the United Nations Convention on Contracts for the International Sale of Goods (CISG) and UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles). This research was conducted following the doctrinal legal research methodology. Examining the CISG and the UNIDROIT Principles revealed that the legal concepts such as force majeure and hardship could be invoked to grant relief. The study finds that the COVID-19 Pandemic will provide the legal basis to invoke these measures depending on different factors such as the duration of impediment, allocation of contractual risks, causal link and the date of signing the contract. In conclusion, the relief provided by these international instruments is likely to be constructed based on the judicial precedent established during comparable circumstances in the past, such as the outbreak of the Severe Acute Respiratory Syndrome (SARS).
Wilkinson, Susannah, ‘Six Levels of Contract Automation: Evolution to Digitalised Smart (and Legal) Contracts’ (SSRN Scholarly Paper No 3748266, 14 December 2020) Abstract: Automation is taking hold in different aspects of business across every industry and every sector. Consistent with this trend, the notion of embedding automatio
Yaremko, Volodymyr and Yaroslava Franck, ‘Proving Impediments Associated with Performance of the Contractual Obligations during the Spread of COVID-19’ (2021) 18(2) Transnational Dispute Management (TDM) [unpaginated] Abstract: At a time when many companies around the world are incurring losses due to the spread of COVID-19 and related government restrictions, which make it difficult to fulfill certain contractual obligations, the trend towards numerous litigation and arbitration cases becomes obvious. Contracts and local laws provide various legal mechanisms to deal with such problems, but in general most require proof that fulfilling specific contractual obligations has become extremely burdensome or impossible. The article analyzes what evidence can help in proving this.
Yismaw, Alemayehu, ‘An Overview of the Legal Implications of Covid-19 on Performance of Contractual Obligations in Ethiopia’ (2021) 5(1) The International Journal of Ethiopian Legal Studies 111-130 (forthcoming) Abstract: Since the first COVID-19 case was confirmed, the government of Ethiopia has taken measures to contain the spread of the virus, and thereby, ease the socio economic impact of the pandemic. Although these emergency measures were swift, as time went, they remain short lived due to various reasons. Businesses are forced, inter alia, to cut back production and service delivery, lay off employees temporally, lack working capital making it difficult to continue operating. Businesses are especially challenged to meet their contractual obligations and keep their commercial relations worthy. As a result, this article overviews the effects of COVID-19 pandemic on the performance contractual obligations and shows the legal relief adopted in Ethiopian law to escape the liabilities of resulted damage. To that effect, the article employs doctrinal research method and hence, assesses domestic laws, books, journal articles, web information, and foreign jurisprudences. Thus, it argues that the COVID-19 pandemic affects the performance of contractual obligations but parties may use force majeure or if not, vary contractual terms to save themselves from the pitfalls of the current pandemic.
Torts
Medical liability literature is in the Health / Medical Law section. Albanese, Antonio, ‘Mobility at the Time of the Coronavirus and Damage Caused by Vehicles Equipped with Electronic Safety Systems’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The introduction of technologies that make vehicles safer is important to address the foreseeable criticalities of road traffic due to the lower capacity of public transport as a result of social distancing measures. In this unique situation, the objective of limiting the spread of the epidemic cannot overshadow the prevention of accidents and human health must be guaranteed with respect to all possible risks. However, new safety systems are not completely failsafe. With these cases in mind, the article proposes to verify the extent to which current rules on civil liability in Italian law may offer solutions to damages caused by highly automated vehicles in terms of preventing harmful events and allocating their costs according to criteria of justice and economic efficiency. Within this logic, the analysis also looks at the rules on the distribution of compensation costs among the various parties that may be jointly and severally liable (driver, owner, custodian or manufacturer).
Asran, Mohammad Hamdan Abdeen, ‘Tort Liability of Novel Coronavirus (COVID-19) Transmission: A Comparative Study Between Civil Law ad Rulings of Islamic Jurisprudence’ (2022) 6(12) Journal of Positive School Psychology 700–720 Abstract: Amidst this terrible spread of the Coronavirus pandemic, it has been observed that one person has transmitted the disease and infected millions of people all over the world, causing human damage to lives, material damages to funds, assets and property, and other moral injuries that are represented in psychological and moral pains suffered by families as a result, particularly when they loss a family member. Here, an important question arises, does a person, who suffered a damage as a result of an infection transmitted to him by a person with corona virus, have the right to claim liability and compensation? This study highlights the definition of liability concerning the transmission of an infection, as well as the definition of an infection and the elements of tort liability related to the transmission of COVID 19 pandemic infection, and how such infection is transmitted and its effect on tort liability. The study also deals with the legal and legitimate basis for the responsibility for the transmission of infection, and how compensation for damage resulting from an infection can be estimated, and the Islamic point of view on determining the responsibility for transmitting the infection and claiming a compensation for. The study also looks at the case of abstaining from receiving treatment medical doses and vaccinations and its impact on the tort liability and compensation claim by the infected person.
Billauer, Barbara Pfeffer, ‘COVID, Courts, and Other Controversies’ (SSRN Scholarly Paper No ID 3710090, 12 October 2020) Abstract: Personal Injury cases seeking recovery for contracting coronavirus are proliferating. These fall into four categories: direct exposure, such as on cruise ships, allegedly claiming negligent property management and decision-making, shareholder liability suits for failure to disclose potential loss from lawsuits, workers compensation cases alleging workplace exposure occurring in the course of employment, and bystander exposure from spouses exposed to their husbands’ who contracted the disease on the job. Proving causation, will, however, be difficult. Proving negligence on the ground of flawed sterilization will also be difficult. Claims against cruise ship operators for failing to notify passengers before embarkation of potential exposure, however, I suggest may have some traction, although at present that route is not being.
Bilotta, Clio et al, ‘The Medico-Legal Implications in Medical Malpractice Claims during COVID-19 Pandemic: Increase or Trend Reversal?’ (2020) 88(1 (Supp)) Medico-Legal Journal 35–37 Abstract: The Covid-19 pandemic caused a marked increase in admissions to intensive care units. The critically ill patients’ condition from the infection resulted in their deaths. The healthcare facilities have got into trouble because of the pandemic. In fact, they had to create additional beds in a very short time and to protect health workers with personal protective equipment. Healthcare professionals fear that there will be an increase in complaints and medico-legal malpractice claims and hence they have urged politicians to discuss this. The Italian Parliament recently debated the topic of medical liability and passed the Decree-Law no. 18 of 17 March 2020 (DL – so called Cura Italia) by which they want to extend the concept of ‘gross negligence’ to healthcare facilities. Several Extended Care Units have suffered from outbreaks of Covid-19, so the Prosecutor’s Office of several cities initiated investigations against them. This situation has reached Sicily, where the Prosecutor’s Office of Palermo has opened an inquiry against an Extended Care Unit. Simultaneously, the Covid-19 pandemic may change patients’ attitudes towards healthcare professionals, who are risking their lives daily. So the Italian medico-legal community is debating these questions, with one last pending question remaining: is the number of medico-legal claims likely to increase or trend down?
Bloom, Anne, ‘The Future of Injury (Tort Law In the Wake of the Pandemic)’ (2022) 71(2) DePaul Law Review 209 Abstract: This Article explores whether the era of Covid, and all that has come with it, ushers in a break with conventional understandings of legal injury. I will argue that it does or, at least, that I hope it does. My starting place is with the failure of conventional understandings of legal injury to adequately recognize and compensate the injuries of most people, especially those who are economically disempowered. Even before the pandemic, injuries to the wealthy and powerful were more readily recognized and compensated than injuries to those on the margins or even the middle class. The pandemic exposed injury inequalities and highlighted the role of the tort system in protecting certain classes of people from liability for the injuries they cause. Ultimately, the implications of the pandemic may prove more lasting.
Brown, Teneille R, ‘When the Wrong People Are Immune’ (2020) 7(1) Journal of Law and the Biosciences Article lsaa018 < https://academic.oup.com/jlb/article/7/1/lsaa018/5834617 > Abstract: After a disaster such as the COVID-19 pandemic, there will be an irresistible desire to blame others. Despite documented failures in the federal government’s response to the pandemic, injured individuals will not be able to hold it accountable due to the broad application of governmental immunity. Congress and state governments have provided targeted immunity to various device manufacturers and emergency volunteers. However, the one group with huge targets on their backs are individual physicians, who are often making impossible choices that are reasonable at the time, but might not appear reasonable to a jury after the fact, and with the bias of hindsight. Recognizing that the potential for liability might cause undue psychological stress on health care providers, this essay argues for statutory immunity that protects them from rationing and other health care decisions that are made in good faith, and that are in compliance with documented state, institutional, or professional pandemic-response guidelines.
Chowdhury, Jamila A, ‘Legal Liability of “Free-Riders” during the COVID-19 Pandemic: A Mere Negligent Public Nuisance or Reckless Public Health Offence?’ (2021) 32(1) Dhaka University Law Journal 174–195 Abstract: This paper illustrates how the gravity of criminal offence caused by ‘negligent’ free-riders duringCOVID-19 outbreak has evolved from mere ‘negligent public nuisance’ to ‘reckless public health offence’ around the globe. In this paper, ‘free-riders’ during COVID-19 pandemic signify people in a given society, who do not comply with prescribed health guidelines (e.g. wearing masks, social distancing, quarantine rules, isolation rules etc.) set by the World Health Organization (WHO)and the Government of Bangladesh to curb the communal spread of the highly contagious Coronavirus. This paper urges policymakers of Bangladesh to make ‘free-riders’ criminally liable with prompt and stringent punishments, especially for their ’reckless’ behaviour manifest in repeated violations of health regulations. this paper has identified existing legal provisions, their recent evolution, and lack of implementation to adequately address the COVID-19 related health risks in Bangladesh. Analysing relevant legislative provisions and associated implementation strategies followed in the UK and other countries, including Singapore, India, and Sri Lanka, this paper emphasises on strategic legal provisions to improve the effectiveness of existing laws in this regard. If adopted, these legal provisions can effectively separate those who ’negligently’ violate health regulations from those ’reckless free-riders’ who repeatedly disregard health guidelines and violate Government regulations over and over again.
Cioffi, Andrea and Raffaella Rinaldi, ‘Covid-19 and Medical Liability: A Delicate Balance’ (2020) 88(4) Medico-Legal Journal 187–188 Abstract: During the Covid-19 pandemic, many countries around the world are considering whether and how to provide liability protection to front-line healthcare staff. The guiding principle of liability protection for physicians and others is to ensure that, in a serious emergency situation, health professionals can devote themselves exclusively to their work and to patient care, without the fear of future claims for unforeseeable, but above all unavoidable, injury, loss and damage caused by their conduct. Great care is needed to balance the interests and rights of all those involved. Liability protection could have risky consequences with the final result that doctors will not be protected, but institutions such as health facilities will be even if they were in fact responsible for foreseeable and avoidable damage.
‘COVID-19 and Damages for Negligent Advice’ [2020] Lawyer (Online Edition) 1 Abstract: The article informs on damages that companies and investors are entitled to who face losses face due to negligent advice in the advent of Covid-19 pandemic. It mentions that COVID-19 pandemic has caused historic losses across financial markets and business, exacerbated by the oil price war between OPEC and Russia. It also mentions about addressing claims related to disadvantageous transactions in the situation.
Doménech-Pascual, Gabriel, ‘State Liability for the Management of the COVID-19 Crisis’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: This paper analyses whether and under which conditions the State ought to compensate for the losses caused when managing the COVID-19 crisis. It focuses, firstly, on instances where public authorities have accidentally caused the damage at issue either through actions or omissions. Secondly, it considers cases of State liability for lawful conduct, where public authorities deliberately have inflicted some damage on a person or a group of people for the sake of the public interest. The paper takes Spanish law as a reference, which does not prevent our analysis from being extended to other legal systems based on similar principles.
Duignan, Kieran and Chloe Bradbury, ‘COVID-19 and Medical Negligence Litigation: Immunity for Healthcare Professionals?’ (2020) 88(1) Medico-Legal Journal 31–34 Abstract: This article considers the recent calls to provide doctors with immunity from medical negligence claims arising out of the Covid-19 pandemic. It provides a critical analysis as to the conditions that would need to be considered for such a policy as well as exploring the wider ramifications.
Eshraghi Arani, Mojtaba, ‘The Liability of Air Carriers for Spread of Communicable Viruses With Emphasis on Covid 19 Pandemic’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Abstract: The advantages of air transportation in terms of human welfare, economic growth and social integration are outstanding and undeniable. However, the high speed of aircraft has made such means of transportation as the main factor of spreading viruses and communicable diseases among the countries. Spread of covid 19 virus from China to other countries by aircraft and the disruptive role of some airlines in this regard necessitated a re-thinking of the air carriers; liability. Regardless of the social liability of air carriers, their civil liability for spread of virus between the passengers has become controversial among the scholars. The basic issue to deal with is that on what conditions an air carrier might be held liable for such spread of virus. A comprehensive analysis of this issue, requires a re-thinking of the concept of ‘sinister/occurrence’ within air transportation under article 17 of Warsaw Convention 1929 or Montreal Convention 1999, further to the general obligations of air carriers for compliance with the relevant health requirements.
Fairgrieve, Duncan et al, ‘Products in a Pandemic: Liability for Medical Products and the Fight against COVID-19’ (2020) 11(3) European Journal of Risk Regulation 565–603 Abstract: A multitude of medical products are being developed and produced as part of efforts to tackle COVID-19. They are varied in nature and range from test kits to tracing apps, protective equipment, ventilators, medicines and, of course, vaccines. The design, testing and manufacture of many of these products differs from production in normal times due to the urgency of the situation and the rapid increase in demand created by the pandemic. This article considers the legal issues arising as a result of the production of emergency products, particularly from a products liability perspective. To what extent do existing concepts under the European Product Liability Directive, such as defect, causation and the various defences, permit the pandemic to be taken into account when a Court is considering issues of liability? What is the impact on liability of the modified regulatory regime? In light of that discussion, the case for alternative responses is examined from a comparative and European perspective, including the issue of Government indemnities for the manufacturers of products, legal exemptions from liability and alternative no-fault compensation schemes.
Feldman, Heidi Li, ‘From Liability Shields to Democratic Theory: What We Need from Tort Theory Now’ (2021) 14(2) Journal of Tort Law (forthcoming) Abstract: Among possible legal responses to a pandemic, quashing tort liability might seem startling. Common sense indicates that a deadly and debilitating disease would call for possible tort liability, to enable recovery for losses by those subjected to the disease because of others’ carelessness while also discouraging careless conduct that could lead to preventable cases illness in the first place. Yet, when faced with SARS-CoV-2 and COVID-19, the life-threatening disease caused by the virus, the first response of many American lawmakers was to enact, or attempt to enact, COVID-19 ‘liability shield’ statutes. These laws introduced doctrine to eliminate or narrow grounds for tort claims against those who caused others to contract COVID-19.As it turns out, the COVID-19 liability shields have an extensive pedigree in the American law of torts. In this article, I review the steady introduction of what I call ‘eliminative’ tort doctrines, especially the wave of them dating back to the 1970s. Individually and together, these doctrines sharply reduce the grounds for personal injury claims, burden the injured’s ability to prevail in permitted claims, and restrict the recovery available even when such claims succeed. Eliminative tort doctrines appear in both federal and state law and apply in a variety of factual circumstances. I maintain that existing eliminative tort doctrines facilitated the rapid promulgation of intricate, detailed COVID-19 liability shield statutes.A fifty-year surge in eliminative doctrines is a distinctive development. It calls for explanation and interpretation. In this article, I introduce a tort theory that centers eliminative tort doctrines, rather than dismiss them as aberrations or passing political fads. I title the theory ‘tort deflationism.’ It is deflationary because it treats tort law as a field that should be modest in the legal liability it creates and the extent of the liability it allows. I argue that tort deflationism is latent in the post-1960s eliminative tort doctrines and their relationship to modern American conservatism, a broad social, intellectual, and political movement that arose after World War II and continues to the present day. I myself do not endorse tort deflationism. I have chosen to articulate it in this article in order to explore its explanatory power, evaluative force, implications for alternative tort theories, and potential significance for democratic theory and practice. Tort deflationism deserves serious attention, if for no other reason than to clarify grounds for objecting to it or to criticize its conception of the law of personal injury.The article examines the COVID-19 liability shields and their predecessors so as to identify the features that any theory geared to them must illuminate. It then spells out the mid-level principles central to tort deflationism and develops a full-blown theoretical synthesis of these principles by showing their ties to the intellectual and ethical commitments of modern American conservatism. Next, the article canvases how tort deflationism can make sense of developments in American tort law other than the post-1960s surge in eliminative tort doctrines, using as an example the law of workplace injury. Then, it covers how tort deflationism compares to other tort theories, showing how it serves as a useful foil. Finally, the article considers how tort deflationism relates to ongoing debates about the legitimacy of law in pluralist democracies.
Finch, John, ‘Care Homes, COVID-19 and Legal Liability’ (2020) 22(9) Nursing and Residential Care 1–3 Abstract: The UK response to the pandemic has been characterised by a focus on the NHS, to the detriment of the adult social care sector. Official guidance has often been muddled and opaque, and legal action regarding duty of care and equipment provision may be on the horizion. John Finch explains
Fortin, Marie-France, ‘Liability of the Crown in Times of Pandemic’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 223 Abstract: While both federal and provincial governments are accountable before the courts for violations of individuals’ rights and freedoms constitutionally protected in the Canadian Charter of Rights and Freedoms, their civil liability in tort for damages is a different matter. This chapter addresses the issue of the suitability of these actions in light of the immunity from suit that the federal and provincial governments (‘the Crown’) enjoy. In the first section of this chapter, the state of the law and recent developments in relation to the Crown’s liability in Canada are discussed. The meaning and consequences of the Supreme Court of Canada’s most recent decisions in relation to the Crown’s liability in the context of the COVID-19 pandemic—including for the acts of its departments, servants, agents, corporations, and independent contractors—are discussed in the second section.
Freckelton, Ian, ‘COVID-19, Negligence and Occupational Health and Safety: Ethical and Legal Issues for Hospitals and Health Centres’ (2020) 27(3) Journal of Law and Medicine 590–600 Abstract: The international incidence of health workers being infected with COVID-19 is deeply troubling. Until a vaccine is developed, they are the community’s bulwark against the pandemic. It is vital that they be protected to the maximum extent possible. This entails the need for implementation of effective and compassionate protocols to keep their workplace as safe as possible for them, their colleagues and their patients in a context of much as yet not being known about the virus and awareness that some persons infected by it are for a time at least asymptomatic and that others test negative for it when they are prodromal or even already displaying some symptomatology. This has repercussions both for the liability of hospitals and multi-practitioner centres for negligence and also under occupational health and safety legislation. With the commencement of the roll out of biosecurity and disaster/emergency measures by government and escalating levels of anxiety in the general population, it is important to reflect upon the measures that most effectively can be adopted practically and ethically to protect the health and safety of those whose task it is to care for us if we become infected by COVID-19.
Friedman, Raphael, ‘Primary Jurisdiction Doctrine and Tort-Agency Partnerships: Why the COVID-19 Pandemic Is No Time for Referral to Administrative Agencies’ (SSRN Scholarly Paper ID 3765004, Social Science Research Network, 18 October 2020) Abstract: The COVID-19 pandemic has already claimed well over 200,000 American lives and has resulted in over 8 million reported cases nationwide. This frightening health crisis has also raised many complex legal questions. One such issue concerns the standard of care employers must adhere to with regard to the safety of their employees at the workplace during the pandemic. Relatedly, the scope of employer liability in tort to employees must be determined. Finally, COVID-19 presents a most regrettable opportunity to study the relationship between tort law and agency regulations and enforcement. This paper briefly analyzes these difficult issues, employing a recent case dismissed in federal court in deference to administrative agencies, as a case study.
González, Sonia Ramos, ‘State Liability for Personal Injuries Caused by the COVID-19 Disease under Spanish Law’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The fundamental question about causation that arises in relation to COVID-19 infections is whether the appearance of the virus (together with its high transmission capacity among the population and its lethality) amounts in effect to force majeure that breaks the causal relationship between the personal damages caused by COVID-19 and the Government’s action in managing the health crisis. This paper also addresses the issue whether, in a situation of extreme urgency, and given limited healthcare resources, a lower standard of care is expected of public health professionals than the one that would prevail under normal conditions. In addition, public administrations are likely to face claims based on tort law on the grounds that some patients were not properly attended to by medical services due to the limited health resources available, as well as the fact that some health professionals were bound to provide essential services, without being provided with the mandatory protective equipment to carry out such activity safely in accordance with the legislation.
Grey, Betsy, ‘Against Immunizing Nursing Homes’ [2021] The University of Chicago Law Review Online (advance article, published 8 July 2021) Abstract: Nursing homes and other long-term care facilities account for approximately one third of the over 500,000 Covid-19 deaths in the United States. Facing liability from that widespread harm, the facilities have sought immunity protection from tort liability. In particular, they have sought protection under the federal Public Readiness and Emergency Preparedness (PREP) Act, which is designed to extend immunity from liability claims arising from various Covid-19 countermeasures developed and used during the pandemic. Importantly for this essay, the lawsuits filed against nursing homes have centered on their failure to take mitigation measures, rather than on harm from their affirmative use of mitigation measures. Initially, courts held that PREP Act immunity does not apply to these failure-to-act claims. In the waning days of the Trump Administration, however, HHS issued an opinion that (together with other HHS statements) interprets the statute otherwise, broadening immunity even to cover the failure to take mitigation measures. That interpretation has been followed by at least one federal district court. This essay questions the wisdom of HHS’s opinion. It argues that it misreads the words and purpose of the PREP Act’s immunity provisions, and undermines accountability of the nursing home industry, creates the wrong incentives for the industry, and may leave victims without any compensatory remedy. This issue should reach appellate courts soon. If the interpretation continues to be followed by the courts, then the Biden Administration should rescind the opinion so that tort law may continue to protect one of society’s most vulnerable populations.
Grey, Betsy and Samantha Orwoll, ‘Tort Immunity in the Pandemic’ (2020) 96(Supplement) Indiana Law Journal 66–88 Abstract: A fundamental premise of our common law tort system is that the risk of liability will help deter unsafe behavior. Yet, as we continue to battle the COVID-19 pandemic, proposals abound to shield businesses from tort liability. Politicians have even conditioned fiscal-stimulus for our ailing economy on passage of tort liability shields. This essay examines the pros and cons of such shields, and concludes that their questionable benefits do not justify loss of the deterrent value of tort liability. Although businesses would surely prefer to avoid lawsuits, those that act reasonably--even without tort immunity--face little risk of damage judgments and would be hard prey for plaintiff personal-injury lawyers. To be found negligent, businesses would need to flaunt such basic precautions as social distancing, gloves, masks and disinfecting measures. Presumably, we should not encourage such behavior by removing the tort system’s incentives to operate safely. And even if a business arguably could have done more to keep their customers and employees safe, plaintiffs would still have the tall burden of establishing causation--that they caught the disease because of the defendant’s neglect as opposed to other sources. Beyond all that, businesses already enjoy the protection of workers’ compensation laws, and strong defenses like regulatory compliance. On the other side of the equation, creating immunity shields may signal to employees and customers that they return to work or patronize business at their own peril--creating an anxiety that undermines the trust and confidence we want to instill to restart of our economy. Finally, other systems, such as insurance and government compensation funds, can be used to encourage businesses to reopen and stay open.
Hall, Gregory Jay, ‘Demystifying the Enigma: The Reasonable Person Standard in Tort’ (2022) 90(4) UMKC Law Review 801–859 Abstract: Social life is inherently risky. Who should pay for the trillions of dollars of accident costs in the United States alone? Recently, Senator Mitch McConnell has predicted an avalanche of lawsuits from COVID-19 related harms due to alleged negligent safety protocols that businesses adopted. Jury deliberation on such will be challenging given the haphazard and sometimes incorrect guidance from health officials. At trial, the judge instructs the jury to decide whether the defendant’s conduct fell below what a reasonably prudent person would have done in the defendant’s circumstances. Since judges do not provide any further direction on that issue, juries have wide discretion in comparing a defendant’s conduct with the enigmatic reasonably prudent person. Such discretion opens the door wide for the legal system to treat litigants differently even though their cases are alike in all relevant ways. Such is the quintessential form of injustice. Additionally, the jury can easily ignore, or fail to give due consideration to, society’s diverse and competing values and ways of life. Doing so privileges some individuals to the unjust detriment of others. Therefore, fundamental injustice may pervade how the United States legal system resolves disputes over who should pay for accident costs. Those forms of injustice are not adequately addressed in tort law doctrine, the Restatements of Torts, and the most prominent theories of accident law. Those theories are based on, and grapple with, two of the major traditions of legal and political thought dating back to the ancient Greeks. Informing jury adjudication with those foundational ideas points to a new under-standing of the reasonable person standard to better guide juries and judges toward more just outcomes in actual disputes as well as to changes in ‘black letter’ law.
Heled, Yaniv, Ana Santos Rutschman and Liza Vertinsky, ‘The Need for the Tort Law Privileges of Self-Defense and Necessity in Intellectual Property Law’ (SSRN Scholarly Paper No ID 3642833, 3 July 2020) Abstract: The COVID-19 pandemic has laid bare inherent tensions between the protection of intellectual property (IP) and the health of individuals touched by life-threatening medical conditions. Examples from around the world have made front page news: hospitals desperate for ventilator parts while 3D-printing instructions for such parts remain unshared for fear of liability; potentially lifesaving medicines whose manufacture and distribution on sufficient scale is limited by the threat of patent infringement; proprietary clinical data essential for making life-or-death decisions withheld from doctors and patients; the list continues. The threat of liability for IP infringement also dampens the ability to innovate under conditions of emergency, further contrasting the protection of IP with the protection of human lives. A number of policy responses for the current pandemic have been advanced, including the application of government rights under the Defense Production Act to IP contexts, compulsory licensing, legislation that would allow for emergency overrides to IP protections, and efforts to encourage companies to make their IP freely available voluntarily through the Open COVID Pledge. But fears of disrupting IP protections have curtailed the use of these measures, leaving the tensions between protection and life-saving access largely unaddressed. In this Article we argue that the time is ripe for doctors, hospitals, independent compounders, medical products manufacturers, engineers and, ultimately, litigants and the courts to consider self-defense and necessity as an old-new tool for resolving IP disputes. Doing so would not only be ethically sound but would also help to resolve many of the public health critiques that have been plaguing IP law by attenuating ingrained misalignments between IP frameworks and the furtherance of public health goals. The Article demonstrates the need for the self-defense and necessity doctrines in IP law; explains how such claims may allow defendants to avoid liability in circumstances in which infringement is necessary to prevent adverse public health outcomes; and shows why the adoption of these doctrines is needed to increase preparedness ahead of future—indeed expected—outbreaks of infectious diseases.
Hemel, Daniel and Daniel B Rodriguez, ‘A Public Health Framework for COVID-19 Business Liability’ (2020) 7(1) Journal of Law and the Biosciences, Article lsaa074 Abstract: This article considers the ex ante and ex post effects of coronavirus exposure liability, drawing lessons from other tort law contexts while also accounting for unique features of the COVID-19 challenge. We begin by surveying the existing legal landscape with respect to tort liability for businesses whose operations expose customers and workers to the risk of contracting COVID-19. We then present a framework for evaluating the public health consequences of various liability rules. Our analysis leads us to propose concrete changes to tort law designed to align business incentives with public health imperatives. We also suggest modifications to workers’ compensation systems aimed at encouraging postexposure precautions on the part of employers and employees.
Hodges, Christopher, ‘COVID-19 Vaccines: Injury Compensation Issues’ (University of Oxford, Legal Research Paper Series, 9 July 2020) Abstract: This analysis summarises the particular injury compensation arrangements that are needed to support adequate take-up of vaccines for COVID-19 and the compensation of those who are unlucky enough to suffer harm arising out of their use. It indicates the inadequacies of the standard liability rules and arrangements, and the advantages of compensation schemes. It notes the widespread use of vaccine compensation schemes but also differences in their design and evolution, before summarising the state of the art on the design of such a scheme for Europeans and on how it may be funded.
Khanderia, Saloni, ‘Identifying the Applicable Law in Cross-Border Disputes on Injuries Caused by the Covid-19 in India: A Critical Analysis’ (2021) 47(4) Commonwealth Law Bulletin 643–667 Abstract: The outbreak of COVID-19 (also known as the novel coronavirus disease) has led to the initiation of several disputes. While some of these relate to the non-performance of contracts, others concern the damages arising from the injuries caused by coming into contact with the virus. Considering the nature of the pandemic, a plethora of disputes arising from tortious liability for the injuries caused are likely to involve a foreign element—when it results in injuries in some form to persons by the violation of quarantine rules by foreigners or the failure to impose a lockdown to curb the outbreak. For instance, in the United States [US], a group of individuals and business owners have reportedly initiated proceedings against the Chinese government for failing to prevent the disease from spreading. Likewise, tourists from several countries such as the Netherlands, Germany and the United Kingdom have initiated mass litigation against the Austrian Federal State of Tyrol and tourist businesses such as sports resorts, bars and restaurants for continuing the to operate in the State despite being designated as a high-risk zone. International disputes such as these chiefly involve the identification of the law that will govern the claim to decide the rights and liabilities of the parties. Unlike in the case of contractual claims, the determination of the applicable law is more arduous in the case of torts for the reason that the parties rarely, if ever, know each other and do not expect any particular person to injure them by the harmful behaviour. That said, several countries across the globe have made remarkable progress over the years in developing a framework to identify the governing law to adjudicate cross-border disputes on torts. The European Union [EU], the UK, China, Russia, Australia and Canada are some examples. In contrast, India continues to adhere to the century-old mechanism developed under the English common law which has mostly been replaced in the UK itself. In the absence of any black-letter law on the subject, the development of the method to identify the applicable law in matters of tort has depended on the courts. The Indian courts, however, lack experience in handling international disputes on tort. As a result, there is no conclusive and coherent mechanism to identify the governing law in such matters in India. The paper demonstrates how the rules to determine the applicable law in the present form in India will severely debilitate access to justice and increase transactional costs in obtaining legal information. In particular, it highlights the plethora of problems that are likely to arise in adjudicating disputes concerning the COVID-19 pandemic. In this respect, the author provides some suggestions that the lawmakers may consider while reformulating the mechanism to identify the applicable law in matters of tort and, in particular, while adjudicating disputes relating to the COVID-19 pandemic.
Klonoff, Robert H, ‘COVID-19 Aggregate Litigation: The Search for the Upstream Wrongdoer’ (2022) 91(2) Fordham Law Review 385–428 Abstract: The COVID-19 pandemic has generated many suits--including thousands of class actions--in which plaintiffs claim that defendants caused economic or health-related harm. Although the COVID-19 context may have led many plaintiffs’ lawyers to believe that the cases would be received with great sympathy, courts thus far have been very cautious, focusing closely--as they do in non-COVID cases--on whether the defendant has breached clear contractual commitments or has engaged in tortious or other wrongdoing. If anything, courts have been more skeptical and cautious in the COVID-19 context, recognizing that everyone has suffered due to the pandemic and that, in many instances, defendants themselves have attempted in good faith to navigate the challenges raised by the pandemic. This Essay focuses primarily on three categories of cases that have already generated numerous rulings: (1) business interruption insurance claims, (2) tuition reimbursement actions, and (3) suits against prisons and immigration detention facilities. These three categories of cases line up on a continuum based on whether the proximate cause of the harm is COVID-19 itself or the conduct of the defendants. At one end are the business interruption insurance cases, which have received hostile treatment from almost all courts that have considered those claims. The underlying insurance policies almost universally require ‘physical loss or damage’ to property, a requirement that is hard to square with losses caused by a pandemic. In the middle are the tuition refund cases, which have seen mixed success, with many (but not all) courts granting motions to dismiss after failing to find that there was a contractual commitment to in-person teaching. At the other end is the category of cases raising health and safety issues related to COVID-19 in prisons and at immigration detention facilities. On the merits, this is the strongest of the three categories, given the clear legal duty of government officials to protect the health of those in their custody. Yet, even in this context, many courts have declined to authorize injunctive relief, finding that the officials involved have attempted in good faith to protect their populations from COVID-19. At bottom, courts have commendably stayed focused on the merits and have not been swayed by the enormity of COVID-19 or the large numbers of claims. After discussing the three categories above, this Essay also briefly examines (1) consumer, labor, and securities fraud cases in the context of COVID-19; (2) COVID-19 cases involving arbitration clauses and class action waivers; and (3) the handful of class-wide settlements that have thus far been reached in COVID-related litigation.
Malakooti, Rasool, ‘The Effect of Coronavirus on the Civil Liability of the Committed’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Jurisdiction: Iran
Abstract: The effect of coronavirus on the civil liability of the committed. The early days of 2020 coincided with a deadly virus outbreak called corona that swept through the world one after another. Although medical science is at odds with it for a moment, the effects that this unknown virus has left or will have on all human beings are also innovations that other disciplines must take action to determine. One of these issues is the consequences of not having or delaying the implementation of obligations due to reduced traffic and closure of centers or communities. In this article, while identifying the legal nature of this disease, it is tried to examine whether this nature applies to the concept of exemption of the Cairo force or not. Finally, the government’s civil liability for compensation for civilian and financial losses to citizens has been assessed.
McGee, Robert W, ‘Does Closing a University Because of the Corona Virus Constitute Negligence or a Breach of Fiduciary Duty?’ (SSRN Scholarly Paper No ID 3590805, 1 May 2020) Abstract: This paper reviews the current Corona virus situation, then examines the legal definitions of negligence and fiduciary duty in an attempt to determine whether closing a university because of health concerns over the Corona virus might result in legal liability for the university’s board members and relevant university administrators.
Meyers, Peter H, ‘The Trump Administration’s Flawed Decision on Coronavirus Vaccine Injury Compensation: Recommendations for Changes’ (2020) 7(1) Journal of Law and the Biosciences, Article lsaa082 Extract from Introduction: Part II of this Article discusses the importance of preparing for the likelihood that COVID-19 vaccines will, like other vaccines, have adverse effects on some small percentage of the population. Part III describes the limitations and problems with the flawed Countermeasures Injury Compensation Program. Part IV describes the better but still problematic Vaccine Injury Compensation Program. Part V describes the highly successful September 11th Victim Compensation Fund. Part VI contains the proposed provisions for the new compensation fund that should be created to handle injury claims that may be filed in connection with the coronavirus vaccines currently being developed, based on the best features of the Vaccine Injury Compensation Program and the September 11th Victim Compensation Fund.
Mirshekaei, Abbas and Fateme Sadat Hosseini, ‘The Civil Liability of Harmful Person in Infection of Corona Virus’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Jurisdiction: Iran
Abstract: In this Article, we try to explain the civil liability in corona virus cases and also review the factors like the injured person’s previous status which can eliminate the liability.
Othman, Arez Mohammed Sediq, ‘Tort Liability Resulted from Negligence in Infectious Diseases under the Iraqi Legal System: Coronavirus (COVID-19) as an Example’ (2021) 5(1) The Scientific Journal of Cihan University– Sulaimaniya 114–133 Abstract: Despite the fact that the issue of Coronavirus pandemic is quite new to Iraq and the emergency response of public authorities might be inefficient in many ways, the application of legal rules is vital to prevent further spread of the virus and to provide a legal basis for compensation based on a tort liability of the infected patient toward others. States are undergone difficult circumstances and crises but priority will remain for the rule of law and public well-being should always be prevailed. Given the fact that public authorities are in a state of shock and trial procedures against the infected patient who transmit the disease to other might be challenging or even inadmissible at this stage, the paper argues that in response to the widespread suffering and death that Coronavirus has caused to many, the court should allow the victim to held the person who transmitted the disease responsible with tort liability and be able to seek fair compensation. Further, it would also argue that awareness raising is not the only solution to prevent the spread of the virus, infected patients shall be held responsible as a way to enhance precaution mechanisms. The paper will focus on tort liability of the infected negligent person in case he or she transmit the virus to others and caused physical or moral injuries under the Iraqi legal system.
Pauzi, Suria Fadhillah Md, ‘Standard of Care Framework for Occupier during Pandemic Covid-19 (SOCO V.3): Reviving Tourism Through Understanding Law’ in Research & Design in Challenging Environment Series 2 (MNNF Publisher, 2021) 115-121 Abstract: The tourism industry has been impacted hard by the Covid-19 outbreak and the measures put in place to stop it spreading. Countries including Malaysia are turning to build recovery strategies in an immediate effort to support the tourism sector. Restructuring the tourist sector by creating green bubble and restoring visitor’s trust on safety in travel and tourism are among measures taking by the government in tourism recovery plan. The main objective of this product is to impart legal knowledge and awareness in tourism industry players pertaining to their obligations and liabilities in managing the influx of visitors. The novelty of this product stems from its unified legal framework, which minimises the difficulty of learning and interpreting the laws by combining the legal standard of care with the government’s most recent Standard Operating Procedures. In addition, infographics on types of visitors as recognised by law and different legal obligation to be adhered by the tourism players are integrated in SOCO v.3 to give an insight to the concerned parties pertaining to the legal liabilities provided by tort law while a checklist is offered for the parties to systematically evaluate and assess their observance to relevant rules and regulations. This unified framework can be used as a reference for tourism businesses to run their operations and avoid future lawsuits. This framework is easily marketed because it comes in the form of an e-brochure that contains up-to-date legal information on current issues during Covid19, which is a once-in-a-lifetime event. In term of benefit, SOCO V.3 provides pertinent legal information in preparing the tourism players to a soft opening while supporting tourism to survive in a new norm. Besides that, it encourages sustainable tourism by restoring visitor’s confidence through adherence to laws, regulations, and standard operating procedure by the tourism players.
Perry, Frederick V and Miriam Weismann, ‘Rationing Healthcare During a Pandemic: Shielding Healthcare Providers from Tort Liability in Uncharted Legal Territory’ (2022) 30(2) University of Miami Business Law Review 142–187 Abstract: As the coronavirus pandemic intensified, many communities in the U.S. experienced shortages of ventilators, ICU beds, and other medical supplies and treatment. There was no single national response providing guidance on the allocation of scarce healthcare resources. There has been no consistent state response either. Instead, various governmental and nongovernmental state actors in several but not all states formulated ‘triage protocols,’ known as Crisis Standards of Care, to prioritize patient access to care where population demand exceeded supply. One intended purpose of the protocols was to immunize or shield healthcare providers from tort liability based on injuries resulting from a medical decision rationing access to care. Research shows that various state protocols have been implemented to this end by either executive order issued by the governor; state legislation; or action by individual hospital ethics boards. This paper examines a legal question of first impression: Whether the right to institute suit for pandemic related healthcare injuries can be constitutionally eliminated using state triage protocol immunity provisions passed by executive order or state statute during the pandemic. The paper concludes that healthcare providers may still be subject to some legal liability depending upon each state’s unique constitutional grant of powers to the executive and legislative branches and the dictates of the Fourteenth Amendment.
Perry, Ronen, ‘Who Should Be Liable for the COVID-19 Pandemic?’ (2021) 58(2) Harvard Journal on Legislation 253–312 Abstract: The Article systematically and critically evaluates the potential liability of various ‘suspects’ for the physical, emotional, and economic losses arising from the COVID-19 pandemic: the country-of-origin (the People’s Republic of China), international organizations (particularly the World Health Organization), federal, state, and local governments and officers, businesses, and healthcare providers. It concludes that existing legal frameworks fail to provide an appropriate solution for victims, primarily because each of the potential defendants can easily evade liability. The Article then proposes a new hybrid (international-domestic) regime, inspired by the international framework for the compensation of victims of nuclear incidents and by the September 11th Victim Compensation Fund.
Peters, Philip Jr, ‘On the Cusp of the Next Medical Malpractice Insurance Crisis’ (University of Missouri School of Law Legal Studies Research Paper No 2021–07, 9 May 2021) Abstract: Medical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a ‘soft’ insurance market, we are now on the cusp of yet another malpractice insurance crisis. How can profits be in peril if claims have dwindled and payouts are historically low? Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums. The industry’s financial statistics today eerily resemble those leading into the 2002 crisis. However, some important differences also exist. Perhaps most importantly, the coronavirus pandemic introduces a variable that makes the current transition from a soft market to a hard one unique. In addition, industry representatives have recognized the signs of a hardening market earlier in the transition than they have in the past and that may enable them to engineer a less painful transition from a soft market to a hard one. The stakes are high. After each of the three prior crises, physicians, hospitals, and insurers descended on state capitals and lawmakers responded with waves of restrictive tort reform. This Article explains how we have come to sit on the cusp of a fourth medical malpractice crisis and examines the factors that will determine how soft our landing will be.
Purcell, Craig, ‘How COVID-19 Has Affected the Practice of Tort Law in New York State’ (2022) 94 (1) New York State Bar Association Journal 26–30 Abstract: As a result of the COVID-19 pandemic, there have been various issues that both plaintiff and defendant tort practitioners have confronted, as they relate to important statutory time periods, immunity and/or limitation of liability. What follows is a discussion of these issues, which will hopefully be beneficial to the members of NYSBA.
Rizzi, Marco, ‘Health Professionals’ Standard of Care and Breach of Duty in Western Australia: A Requiem for the “Peer Professional” Test at a Time of Uncertainty’ (2020) 26(2) _Torts Law Journal_ Abstract: In late September 2019, the Court of Appeal of Western Australia, comprising Quinlan CJ, Murphy and Pritchard JJA, handed down a significant judgment that sheds a measure of light over some intricate aspects of medical liability in WA. The Civil Liability Act 2002 (WA) (‘CLA’) is unique in its provision of a special standard of care for health professionals under s 5PB. Other civil liability statutes include special provisions for the liability of ‘professionals’ in general, and these provisions normally take the form of the so-called ‘peer professional opinion’ defence. The decision in Child and Adolescent Health Service v Mabior (‘Child’) gave the WA Court of Appeal the opportunity to clarify the nature of s 5PB as a special standard of care (as opposed to a defence). The Court also made some important points regarding the method of identification of relevant experts for the purpose of establishing complex scientific facts, which is a different exercise from the identification of the health professional’s peers for the purpose of establishing standard of care and breach of duty. While this decision systematises a rather oddly worded portion of the CLA, it arguably does so at the expense of its intended scope of application. Indeed, the restrictive approach adopted by the court may well have deprived s 5PB of any practical relevance. This is not an insignificant development. Indeed, the COVID-19 pandemic is putting healthcare systems under increasing amounts of pressure, and patients are bound to be cared for in accordance to practices that, by the very nature of the rapidly evolving current circumstances, cannot be well-established.
Rockwell, Casey and Chad G Marzen, ‘Justice on the High Seas: Nonpecuniary Damages and the Death on the High Seas Act’ (SSRN Scholarly Paper No 4761616, 16 March 2024) Abstract: The COVID-19 pandemic has brought forth many discussions on liability issues. The Death on the High Seas Act currently prohibits recovery of ‘loss of society’ or ‘loss of consortium’ nonpecuniary damages. This Article contends that in the wake of the coronavirus pandemic, with the harsh results of the application of DOHSA in coronavirus cases, Congress has an opportunity to amend DOHSA. Allowing recovery of nonpecuniary damages in DOHSA cruise line cases, advocated for by a bipartisan group of lawmakers, will provide consistency and fairness to DOHSA.
Ruda, Albert, ‘Tort Law and the Coronavirus: Liability for Harm Caused by the COVID-19 Outbreak’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: Although much attention has been paid to the impact of the Covid-19 outbreak on the existing contracts and businesses, the current crisis also poses plenty of questions from a tort law perspective. Even though the Coronavirus as such may be deemed an instance of force majeure or impossibility for which no one should be held liable, it comes without saying that such a defence does not exclude liability of those persons who actually cause damage to others, in particular as regards public authorities which adopt measures to fight the crisis as such, or any person who infects another in a negligent manner, among other examples. The paper explores some of the scenarios in which tort liability may arise as a result of the Covid-19 outbreak and subsequent measures. In particular, it focuses ‘Principles for the Covid-19 Crisis’, drafted by the European Law Institute, and compares them with the approach adopted in several national jurisdictions within the EU, and especially Spanish law.
Sebok, Anthony J, ‘The Deep Architecture of American COVID-19 Tort Reform 2020–21’ (2022) 71 DePaul Law Review (forthcoming) Abstract: The rapid emergence of the COVID-19 pandemic produced massive state actions to protect in public health through the exercise of the police powers by local, state and national governments. In the United States there were calls early in the crisis to exercise the state’s power over tort law: As early as April 2020, the American Tort Reform Association published a White Paper, Responding to the Coming Lawsuit Surge that called for ‘reasonable constraints on . . . lawsuits that pose an obstacle to the coronavirus response effort, place businesses in jeopardy, and further damage the economy.’This article, prepared for the 27th Annual Clifford Symposium, ‘Civil Litigation In A Post-Covid World,’ has two parts. First, it collects, as of the end of 2021, the various tort reforms adopted by United States jurisdictions and classifies them according to a variety of dimensions, including the scope of the immunities proposed and the changes to tort doctrines by which defendants were provided increased protections from suit. Second, it provides a theory of tort reform in the United States from the perspective of whether reforms are ‘tort negative’ or ‘tort positive’ and provides historical examples of both types, including the General Aviation Revitalization Act and the Federal Employers’ Liability Act.The Article analyzes the variety of tort reforms proposed and adopted since 2020 in connection with COVID-19 as a particular type of tort negative tort reform. Based on this analysis, policy makers can clearly see the lack of rational connection between the reforms adopted and the purported public policy goals upon which these legislative efforts were based. This Article should server as a cautionary tale of a failed effort at tort reform, and one that should not be emulated in the future.
Terry, Nicolas P, ‘Liability and Liability Shields’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 199–204 Abstract: This Chapter first examines the liability of businesses and medical professionals for acts and omissions involving COVID-19 mitigation, treatment, and reopening. Second, it provides an analysis of the federal and state liability shields, those that were in existence before COVID-19, those introduced more recently, and calls for more and broader shields. Claims will be brought by consumers (predominantly nursing home residents) alleging that businesses failed to protect them, patients treated at the height of the pandemic when emergency departments were overrun, and consumers who contract the virus during reopening. There are few federal liability shields applying to private actors, the most important being the PREP Act of 2005. A substantial number of states have adopted some type of liability waiver specifically related to the COVID-19 pandemic, initially providing immunity protections for health care providers and more recently protecting businesses as they reopen. Many of the health care providers shields present difficult questions of interpretation, particularly with regard to whether they are limited to emergency triage decisions, mitigation, or treatment efforts in contrast to broader acts or omissions that may have contributed to the infection outbreak, such as poor hygiene control. There is no evidence that a broad federal shield is necessary. State policymakers also should resist calls for broader shields and should provide transparent, data-driven guidance on reopening which can inform the existing and appropriate reasonable care standard. Court should carefully scrutinize the constitutionality of shields and not show the same deference as given to prior tort reform legislation.
Tsuji, Yuichiro, ‘COVID-19 Vaccination in Japan: Remedies for Injured Patients’ (2021) 16(1) Health Law & Policy Brief 40–54 Abstract: This article examines COVID-19 vaccination in Japan and possible compensation rights for those who experience adverse reactions. In Japan, the Constitution and the Local Autonomy Act place regular vaccination of citizens as a municipal task. If a disaster occurs that is beyond the jurisdiction of the municipality, the prefectural government, which is positioned above the municipality, responds. The central government is constitutionally responsible for coordinating prefectures in the event of a disaster that exceeds their capacity to handle. Japanese constitutional jurisprudence holds that social restrictions inherent to property rights do not necessitate compensation, but it is possible that compensation would be necessary if society’s evaluation of compensation for property rights changes significantly. A lower court decided that compensation under the property rights provision could be applied if the vaccination caused serious damage to the health or life of citizens. The Supreme Court of Japan has recognized the government’s liability, judging that negligence exists in the system of vaccination itself in the obligation of doctors to question patients during vaccination when serious damage to health or life occurs due to vaccination. This decision would also apply to adverse reactions caused by COVID-19. The debate on whether compensation is necessary or unnecessary gives a scathing assessment of the negligence of the political branches. Even if compensation based on property rights is not necessary, provisions based on social rights can be used to require the government to take steps in parliament and governance to help the socioeconomically vulnerable. Constitutional scholars should be careful when they argue that compensation for property rights is unnecessary, as citizens may misunderstand that socioeconomic support based on social rights is also unnecessary.
Watts, Kim and Tina Popa, ‘Injecting Fairness into COVID-19 Vaccine Injury Compensation: No-Fault Solutions’ (2021) 12(1) Journal of European Tort Law 1–39 Abstract: The devastating impact of the COVID-19 global pandemic has fast-tracked the development of vaccines against the SARS-CoV-2 virus, with global vaccination efforts already underway. While the introduction of large-scale or even mandatory vaccination will facilitate resumed social interaction, work and travel, such action is not without risks. Vaccination exposes recipients to the risk of rare but serious effects, leading to pertinent questions about liability and compensation for harm caused by vaccination. There have already been rare blood clotting reactions associated with two COVID-19 vaccines, some of which have been fatal. Traditional means of accessing compensation, such as liability-based litigation, product liability regimes and existing statutory schemes may be inadequate avenues of accessing compensation for individuals who sustain vaccine-related harm. Despite a significant number of countries worldwide introducing vaccine injury compensation schemes, many European countries and Australia have been hesitant to develop a no-fault scheme to respond to potential vaccine-related injuries. This article critically analyses whether existing compensation mechanisms, including liability-based tort claims, operating in common law and civil jurisdictions, are adequate avenues of accessing compensation by injured individuals. Australia and Europe are compared because of the close similarities in their existing liability-exemption approach to vaccine injury compensation, rather than no-fault. This stands in stark contrast to the use of no-fault schemes in other major jurisdictions, and the COVAX vaccine injury compensation scheme available in 92 low- and medium-income countries. The authors conclude that the introduction of a no-fault vaccine injury compensation scheme is a desirable mechanism to compensate vaccine-related injuries, by offering a more efficient and easily accessible method of accessing compensation when compared with liability-based causes of action. With the commencement of vaccination, urgent introduction of no-fault vaccination injury compensation schemes ought to be at the forefront of lawmakers’ reform agenda.
Wulandari, Mila Dianur and Siti Mahmudah, ‘Implementation of Debtor Law in Force Majeure Credit Financing During the Covid-19 Pandemic’ (2024) 5(2) JILPR Journal Indonesia Law and Policy Review 299–309 Abstract: The COVID-19 pandemic has had an impact on the economy, especially the people of Kudus Regency. This research uses an empirical juridical approach, namely an approach that examines statutory regulations related to the issues to be discussed, and also takes a field approach to obtain information as supporting material. This research aims to analyze the implementation of the law and the legal consequences for debtors in Force Majeure in credit financing during the COVID-19 pandemic at PT. Bank Rakyat Indonesia Kudus Regency Unit Office. Implementation of law on debtors in Force Majeure credit financing during the COVID-19 pandemic at PT. BRI Kudus Regency Unit Office in accordance with POJK No.11 of 2020, the Bank can provide credit financing restructuring to debtors provided that the debtor is affected by the spread of COVID-19 which results in the debtor having difficulty fulfilling obligations to the Bank.
Yang, Y Tony and Brian K Chen, ‘Liability Waivers for COVID-19: Law, Policy, and Practice’ (2021) Journal of Public Health Management and Practice (advance article, published online 30 June 2021) Abstract: As businesses reopen, the practice of asking customers to sign COVID-19 liability waivers is increasing throughout the United States. Although the courts have not yet decided the enforceability of COVID-19–related liability waivers, existing case law, as well as new executive and legislative actions, suggests that such waivers may offer some protection to businesses from liability. Nevertheless, we believe that the legal and ethical rationales underlying liability waivers are not applicable to a pandemic. We further argue that the challenging nature of and the substantial unknowns about the novel coronavirus make waivers contrary to public policy. Fears over floods of litigation appear thus far unfounded, and businesses should not be relieved from their obligation of taking reasonable safety precautions. Waivers are not a panacea to reopen businesses in an ongoing pandemic, and the ultimate protection against liability is to operate in a manner that minimizes the spread of the virus consistent with evidence-based guidelines.
Yazdanian, Alireza, ‘Reflection on the Government’s Civil Liability for Damages Caused by the Corona Virus In Iranian and French Law’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Abstract: If the developments in civil liability law and the emergence of new damages are studied, it is not unlikely to be said that any damages were not as extensive as those caused by Corona or Covid 19. One of the issues that can be considered in this regard is the government’s responsibility in this epidemic. That is, the performance or taking of a neutral position by the authorities can lead to the responsibility of the government. If the government violates its obligations regarding epidemics, especially when the government violates the “right to information” of the citizens, or does not report, or reports late, or gives bad news, and this helps to ignite the inflammation caused by the disease, from a legal point of view, the responsibility of the government can be raised. If until yesterday the responsibility of the government in such diseases was considered an idea, the spread of the corona virus and especially the performance of some governments made it a necessity. The French doctrine is a great example of recognizing responsibility for government, which will be studied in a comparative way in this article.
Zatz, Clifford J, ‘Employers Owe No Duty to Prevent “Take-Home” COVID-19, California Supreme Court Holds.’ (2023) 49(3) Employee Relations Law Journal 24–27 Abstract: California employers will not face tort liability to employees’ household members who contract COVID-19, the California Supreme Court has ruled. Answering questions certified by the U.S. Court of Appeals for the Ninth Circuit, and declining to follow its ruling in ‘take-home’ asbestos cases, the court in Kuciemba v. Victory Woodworks, Inc., held that ‘recognizing a duty of care to nonemployees in this context would impose an intolerable burden on employers and society in contravention of public policy.’ California thus becomes the first state to reject, at the highest court level, the potentially limitless liability for negligence based on employee transmission of the coronavirus.
Zoll, Fryderyk et al, ‘The Right to Damages Caused by COVID-19-Related Restrictions under Polish Law’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The COVID-19 crisis has marked nearly all spheres of our lives. To combat the spread of the virus, the Republic of Poland decided to impose severe restrictions as to the rights and freedoms of citizens and entities without applying the formal extraordinary measures as provided by the Constitution. Businesses have been significantly affected, but it is highly disputable whether they will be compensated by the state. Two compensation regimes are potentially applicable: the one provided for in the Polish Civil Code and the other regulated in the Extraordinary Measures Compensation Law. In both cases, the conditions for the compensation are ambiguous. Therefore, the aim of the paper is to determine the main factual and regulatory issues which might inhibit compensation of COVID-19-related damages.
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