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 goes 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 contribution explores some of the scenarios in which tort liability may arise as a result of the COVID-19 outbreak and subsequent measures. Unlike in other jurisdictions, where a specific statutory regimes on the protection against infections (as in Germany) or epidemics (as in Switzerland) exist, Spanish law basically faces the many challenges posed by the Corona pandemic with a general liability regime which seems rather ill-suited to that end. Therefore, the contribution analyses how those challenges can be tackled. Moreover, it analyses whether the “Principles for the COVID-19 Crisis”, drafted by the European Law Institute, bring anything new in comparison.

INTRODUCTION

The COVID-19 outbreak has triggered an intense scholarly debate on the impact of the pandemic on existing contracts and businesses. Initially, attention was paid to the protection of weak or vulnerable parties, to whether the crisis as such amounts to force majeure or impossibility, to its influence – or lack of it – on contracts which were pending performance, etc. However, the question as to whether the outbreak may lead to harms for which compensation may be sought outside of a contract seems to have attracted less attention. This is undoubtedly because, by definition, tort liability, as an extracontractual device or legal institute, per definitionem enters into play ex post, once damage has occurred – and, sometimes, when it is already too late to restore it. Liability issues typically come after crisis management, not before.

Since at the time of writing this contribution, the crisis is still evolving, it is probably too early to examine every single possible scenario in which tort liability may arise. Most notably, the coronavirus as such is still not fully understood from a medical or scientific perspective.