The benefits of the “rebus sic stantibus” clause for the self-employed.

Lawyou — Wednesday, 24 de february de 2021

The benefits of the “rebus sic stantibus” clause for the self-employed

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The jurisprudential doctrine of the “rebus sic stantibus” clause in certain current contracts entered into prior to the appearance of the first news from China on the epidemic generated by the spread of the coronavirus COVID-19, may be of use to self-employed with contract expiration problems (rents, etc.,), who could resort to this clause to alleviate the economic effects that this crisis is entailing in the activity of many professionals and traders.

It is the right time to contribute to the current debate among jurists on the possible application of the jurisprudential doctrine of the “rebus sic stantibus” in certain existing contracts entered into prior to the appearance of the first news from China, on the epidemic generated by the spread of the COVID-19 coronavirus.

The “rebus sic stantibus” in certain contracts entered into prior to the appearance of the first news from China, on the epidemic generated by the spread of the COVID-19 coronavirus.

Self-employed persons with contract expiration problems (rents, etc.) could resort to this clause to alleviate the economic effects that this crisis is having on the activity of many professionals and traders.

These would be those lease contracts for business premises or of a commercial nature that are seriously affected by the measures derived from Royal Decree 463/2020, of March 14, which declares the state of alarm and all those complementary to contain the spread of the infection.

It seems evident that at this moment there is a capital circumstance, which was unforeseeable and which is supervening, such as the appearance and extension of the epidemic to become and reach the current degree of pandemic, as well as the social isolation measures imposed on the country as a whole.

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An example of the fact that all that is happening was not reasonably foreseeable is today’s news from Italy, which indicates that the number of deaths in that country already exceeds those in China during the entire epidemic.

Therefore, some of these contracts could be affected by a high risk of frustration of the purpose of the same.

Cases in which the object and purpose of the contract is impossible due to the situation arising from the pandemic, a circumstance that is totally beyond the control of the contracting parties, who, however, maintain their firm decision and commitment to continue the contractual relationship once the current health crisis is overcome.

Cases in which the object and purpose of the contract is impossible due to the situation arising from the pandemic, a circumstance that is totally beyond the control of the contracting parties, who, however, maintain their firm decision and commitment to continue the contractual relationship once the current health crisis is overcome.

And in view of this, it is reasonable to understand that an interpretation of these contracts that leads to placing all the risks of the present situation on one of the parties could go against the spirit of the contract itself.

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In short, it seems legally feasible under the protection of the referred jurisprudential doctrine (for all the judgment of the Supreme Court dated July 18, 2019, relapsed in the appeal 3157/2016, Id Cendoj: 28079110012019100462) of the “rebus sic stantibus” contemplate, for example, a reduction of the price, deferrals in payment or even the temporary suspension of the reciprocal obligations of the contract thereby respecting the general principle of law of preservation of contracts.

The application of the present thesis to the concrete case will depend on the calm and exhaustive study that each jurist makes on the situation and on the contract that is presented to him, as well as on the decisions that the Courts of Justice will take from here on.
If you have doubts and need advice on how to deal with this situation contact us.

At LAWYOU we have lawyers with many years of experience who can help you or give you more information about the currently applicable legislation and future changes.

Do not hesitate to contact us to tell us about your case through our email atencionalcliente@lawyoulegal.com or, if you prefer, you can also call us at 602 226 895. Or you can leave us your details here.

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Fuente: Original article on confilegal.com on March 25, 2020.

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