From the effects of the outbreak on corporate governance and employment relationships to its impact on arbitral proceedings and procedural deadlines, numerous articles discussing the legal issues raised by the global spread of the new coronavirus (“COVID-19”) have been published over the past few weeks.
One of the main issues that has been raised is whether the recent Coronavirus outbreak and the implementation of a series of governmental restrictions that aim to contain it affect the contractual obligations of the parties.
Here are four issues of contract law raised by Covid-19:
- IS COVID-19 A FORCE MAJEURE EVENT?
Answer: It depends.
Force majeure is an event that prevents the performance of the obligations of the debtor and that presents 4 characteristics:
- It is an event beyond the control of the debtor.
- It is an event which could not have been reasonably foreseen at the time of conclusion of the contract.
- It is an event whose effects are irresistible in the sense that they could not be avoided by appropriate measures.
- It is an event that renders the performance of the obligations of the debtor impossible and not just more onerous.
Should an event be characterized as Force Majeure in Lebanese law, the debtor ceases to be liable for non-performance of his obligations and the contract will either be suspended (if performance is temporarily prevented) or terminated (if performance is permanently prevented).
Although several government officials have declared that the recent Covid-19 outbreak and the accompanying governmental measures constitute events of Force Majeure, such a characterization does not bind the Courts and these events cannot be automatically characterized as Force Majeure.
Unless the parties have agreed on a Force Majeure clause and the aforementioned events fall within the scope of this provision, the characterization of these events as Force Majeure is established on a case by case basis by the Courts and depending on the circumstances of each case.
Covid-19 and the implemented governmental restrictions can be characterized as a Force Majeure in case the debtor proves that:
- These events were not reasonably foreseeable at the time of conclusion of the contract (which would be the case for the vast majority of contracts concluded prior to the recent outbreaks).
- The debtor could not take any measures to avoid the consequences of these events on the performance of the contract.
- There is a causal link between these events and non-performance of the contract.
Force Majeure might be characterized, for example, if the debtor is prevented from performing a contract that he had entered into prior to the recent Covid-19 outbreak because he has been infected by the virus and has been hospitalized; or because the governmental confinement orders have prevented him from reaching the place of performance of the contract and his physical presence at the place of performance was required (Ex: contractor that cannot access the site of construction).
However, Force Majeure might not be characterized if the contract had been concluded after the recent Covid-19 outbreaks because these events were reasonably foreseeable at the time of conclusion of the contract; or if the debtor is a company that can provide services remotely and whose employees are accustomed to working from home (Ex: Graphic design company).
- CAN THE DEBTOR OBTAIN A REVISION OF HIS CONTRACT ON THE GROUNDS THAT PERFORMANCE OF HIS OBLIGATIONS HAS BECOME MORE ONEROUS?
Answer: No.
Unless the parties have agreed otherwise, Lebanese courts do not allow the revision of the contract if a change of circumstances, that was unforeseeable at the time of the conclusion of the contract, renders performance excessively onerous for a party who had not accepted the risk of such a change.
The position of Lebanese law on the matter is fundamentally different from the laws of other Arab countries that have authorized courts to revise contractual provisions when such circumstances arise (E.g. Article 147 of the Egyptian Civil Code, Article 148 of the Syrian Civil Code, Article 146 of the Iraqi Civil Code, Article 249 of the Emirati Civil Code, Article 171 of the Qatari Civil Code).
- CAN THE DEBTOR BE GRANTED A GRACE PERIOD ON ACCOUNT OF THE RECENT EVENTS?
Answer: Yes.
According to Articles 115 and 300 of the Code of Obligations and Contracts, the judge can take into account the situation of the debtor in order to grant him a grace period for the performance of his obligations provided that the debtor is acting in good faith.
In light of the current situation, it is likely that a debtor who is acting in good faith will be granted a grace period for the performance of his obligations.
- CAN THE CREDITOR DISSOLVE THE CONTRACT ON THE GROUNDS THAT HE CAN NO LONGER DRAW ANY BENEFIT FROM THE PERFORMANCE OF THE CONTRACT?
Answer: No.
Unless agreed otherwise by the parties, the creditor cannot dissolve the contract on the grounds that the recent Coronavirus outbreak has taken away the benefits that he would have otherwise been able to withdraw from the performance of the contract.
First, the cause of the obligation must exist at the time of conclusion of the contract and its disappearance at the time of execution does not lead to the dissolution of the contract unless the parties have agreed that the continuation of the contract is conditioned upon the permanence of the cause of the obligation. It should be noted that the issue of the dissolution of the contract for the disappearance of the cause of a consecutive obligation -caducité du contrat- does not find a clear answer in Lebanese Law.
Second, the non-satisfaction of the individual purpose that has motivated the conclusion of the contract does not allow the creditor to dissolve the contract. According to article 200 of the Code of obligations and contracts, the cause of the contract does not constitute an integral part of the agreement. Therefore, the creditor cannot, in the absence of contractual provisions to the contrary, invoke the non-realization of the subjective purpose for which he entered into the agreement in order to dissolve the contract.
About the author:
Najib Hage-Chahine is the Managing Partner of Hage-Chahine Law Firm. He holds the prestigious title of Agrégé of the French Faculties of Law which is the highest academic recognition that is bestowed upon French Law Practitioners and is a Professor of Private Law at the Faculty of Law and Political Sciences at Saint-Joseph University in Beirut and a Visiting Professor at Université Paris 2 Panthéon-Assas in Paris. He has numerous publications in the fields of Alternative Dispute Resolution, Arbitration, Civil Law, Contract law, Commercial Law, Private International Law, Mediation, and Tort Law.