Corona between theory of emergency conditions and force majeure

On March 11, 2020, the World Health Organization announced that the novel Corona virus, causing the disease “Covid-19” which is spreading around the world, constitutes a “global epidemic”. And it has become an obligation for all countries of the world to take precautionary measures in such cases.

This has undoubtedly affected normal life in general and contracts and obligations in particular, and there is no doubt that the Corona epidemic is considered a cause extraneous to the contract, since it is beyond the control of the contracting parties and is suddenly produced without anyone. I’m waiting for him. , therefore it seems that the degree of its impact with the impact of wars and natural disasters that prevent the implementation of the contract is in the agreed form, and its impact can reach the impossibility of implementing the contract, and Further before knowing the role of the epidemic in the execution of contractual obligations, one must first learn about each of the two theories, because there is a real debate on the question of whether the impact of the epidemic is an emergency or force majeure. Due to the different legal effects of the two theories, the difference between them needs to be clarified.

First: The theory of emergency conditions:

Under the emergency conditions theory, the emergency circumstance must be unforeseeable and would cause the other party to suffer heavy and exceptional losses that would exceed the usual loss in a transaction, so that it would result in serious harm. The impact of the emergency circumstance on the loss of profit opportunity for the co-contractor by reducing his profits, there is no room for the implementation of this theory, nor does it result in the cessation of the obligation, but the judge reduces the obligation to a reasonable extent so that the debtor can perform it without fatigue,

Conditions for applying the theory of emergency conditions

The Qatari legislator used this theory in the second paragraph of article 171 of the Civil Code, as follows: ((2- However, in the event of exceptional and unforeseeable incidents of a general nature, and due to their occurrence, the execution of the contractual obligation, even if it has not become impossible, has become onerous. If the debtor threatens him with significant harm, the judge may, depending on the circumstances and after weighing the interests of the parties. two parties, reduce the onerous obligation to an amount reasonable to that extent, and any agreement to the contrary shall be null and void.

It is clear from the text of the article that the Qatari legislator has set the conditions for the application of the theory of emergency conditions.

These are three conditions: 1- The occurrence of the general emergency circumstance after the birth of the obligation, 2- The unpredictability of the emergency circumstance, 3- That the implementation of the commitment becomes stressful and not impossible,

The exhaustion mentioned is the extreme fatigue which exceeds the usual loss in trade, which distinguishes the theory of emergency conditions from the theory of force majeure in which it is impossible to perform the obligation in its presence.

Second, the theory of force majeure:

As for force majeure, it is obtained by the occurrence of an unforeseeable event and cannot be postponed, and it is defined as a foreign cause independent of the will of both parties which makes the execution of the obligation impossible. , and impossibility means that the parties are unable to advance or defeat that cause.

The occurrence of force majeure requires several conditions: the impossibility of performance of the obligation, and the obligation impossible to perform must be a main and not dependent obligation, and that the impossibility is total and not partial, containing the the entire contract, and that the impossibility occurs at a later date of the commitment, and in the event of application of force majeure it is stipulated that the issue of force majeure will not be issued. There is an error on the part of the debtor who adheres to it. If these three conditions are met, we are in the presence of a case of force majeure preventing the execution of the obligation contained in the contract, and if the judge finds that the impossibility is temporary, the obligation may be suspended until ‘what it is is no longer possible.

Third: to what extent the Corona epidemic is subject to one or the other of the two theories:

The clear and explicit criterion here is the extent to which the epidemic affects the contract to be executed. If the effect is to seriously exhaust one of the parties to the contract and the Corona epidemic causes an increase in production costs or an increase in shipping prices in a stressful manner, then the epidemic is considered here as an emergency, but if it causes the Corona epidemic In the impossibility of fulfilling the contract, as if the transport of raw materials becomes impossible due to the closure of a country’s borders, the epidemic becomes a case of force major.

– Finally:

Having fully explained each of the two theories and the extent of the application of the Corona epidemic to each of them and the legal effect of each of the theories, the practical aspect of the application of the two theories remains linked to the Qatari reality and the extent of its impact on contractual obligations. Here we need to consider the following:

First: we must wait for the Qatari judiciary to rule on the extent to which the Corona epidemic applies to either of the two theories and the extent of its impact on contractual obligations.

Second: it is not possible to generalize about the application of one of the two theories to the Qatari reality. It is possible to apply one theory to certain activities and apply the other to the rest of the company’s activities.

Third: Any person concerned, whatever the nature of their commitment or contract (in case of need and necessity), must resort to the judicial power and establish their recourse after having gathered everything which proves that they have been harmed by the epidemic, and wait for the work of the court hearings to be organized, God the Almighty willing, and for him to obtain all his rights through a judicial decision and his compensation if it turns out to be correct. what he claims.

Fourth: In our opinion, an amicable agreement should be reached between the parties, and each party will bear part of the losses, taking into account the general circumstances.

Fifth: It is established in the principles of the judiciary that the occurrence of epidemics and diseases is one of the emergency circumstances that make the execution of the contract impossible, and several judicial precedents have been published confirming this.

Finally, we can say: there are those who have been affected to the point that their commitment has become impossible; Which makes us apply the theory of force majeure, and there are those who have become obliged by them, so we apply the theory of emergency conditions to them, and there are also those who have not been completely affected , so neither theory applies to them. , and the assessment of this and that belongs to the judicial authority.