7 results
Force Majeure and Hardship in the Corona Crisis: Some Contract Law Reflections on ELI Principle no 13
- Edited by Ewoud Hondius, Marta Santos Silva, Andrea Nicolussi, Pablo Salvador Coderch, Christiane Wendehorst, Fryderyk Zoll
-
- Book:
- Coronavirus and the Law in Europe
- Published by:
- Intersentia
- Published online:
- 10 December 2021
- Print publication:
- 01 August 2021, pp 603-626
-
- Chapter
- Export citation
-
Summary
The Principles for the COVID-19 crisis, drafted by the European Law Institute in May 2020, provide a set of criteria that deserve 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 contribution, thus, analyses the new Principle no 13 from the perspective of (mostly) Spanish contract law, the CISG and several softlaw instruments.
INTRODUCTION
The worldwide crisis caused by the emergence of the COVID-19 reveals that the system of remedies against a contractual breach, laid down by uniform sales law and softlaw instruments, is designed for crisis situations between contracting parties, but it is unsatisfactory both in scenarios of generalised misfortunes that affect the planet, and, simply, when impediments occur that are beyond the control of the parties. This justifies that institutions dedicated to the study of law (as is the case of the European Law Institute) immediately publishes principles applicable to contracts affected by the COVID-19 crisis. The text of the European Law Institute (ELI) Principles for the COVID-19 crisis contains a proposal of 15 basic measures (principles) adapted to these circumstances, both of public and private law. The purpose of this contribution is to briefly analyse its Principle no 13, dedicated to force majeure and hardship, and to compare it with Spanish law. At the same time, the authors intend to explain its content and suggest some reflections. To do that, a previous delimitation of concepts is necessary.
The principle of freedom of contract, present in all market economies, means not only that the parties to a contract can freely choose whether to celebrate it or not, but also that the agreement reached should be honoured (pacta sunt servanda or sanctity of contracts). In other words, it is the main principle of contract law that the parties are bound by their promises, the latter being the very reason of the contract conclusion.
Tort Law and the Coronavirus: Liability for Harm Caused by the COVID-19 Outbreak
-
- By Albert Ruda
- Edited by Ewoud Hondius, Marta Santos Silva, Andrea Nicolussi, Pablo Salvador Coderch, Christiane Wendehorst, Fryderyk Zoll
-
- Book:
- Coronavirus and the Law in Europe
- Published by:
- Intersentia
- Published online:
- 10 December 2021
- Print publication:
- 01 August 2021, pp 321-342
-
- Chapter
- Export citation
-
Summary
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.
Spain
- Edited by Israel Gilead, Bjarte Askeland
-
- Book:
- Prescription in Tort Law
- Published by:
- Intersentia
- Published online:
- 22 December 2020
- Print publication:
- 14 August 2020, pp 579-620
-
- Chapter
- Export citation
-
Summary
INTRODUCTION
Under Spanish law, prescription (prescripción) is an institution provided for by statutory law. As regards tort law, its legal regime is laid down mostly by the Spanish Civil Code (hereinafter, CC), but its rules are generally considered confusing, incomplete and outdated. For this reason, it is commonly contended that an in-depth reform is strongly needed. In its present state, Spanish law on prescription is depicted as departing both from comparative law models and its own historical roots, something which is deemed to increase confusion. Some regions have their own statutory regimes, which are to a certain extent more advanced in several respects. Apart from the Navarra ‘Foral‘ regime, the Civil Code of Catalonia is more in line with the latest developments in other jurisdictions, as will be partly shown below. However, this report will mostly focus on Spanish law only.
The foundation of prescription is the convenience of putting an end to the exercise of rights in an‘out of time‘ way. That guarantees everyone a state of peace and tranquillity in which the person at stake can feel free of the possibility of being claimed against by another. The benefits of such a purge of claims is very variegated: the potential defendant does not need to keep the memories and the evidence of payment for an indefinite period of time; one does not need to take the risk of being sued in tort when adopting decisions or making ‘balances‘ all lifelong into account. Otherwise, all hereditary transmissions would have to be accepted under the benefice of inventory and the management of risk by tort liability insurers would be hindered to an unaff ordable degree. Prescription also makes it unnecessary to have to file a suit in order to eliminate a situation of uncertainty, which would otherwise remain perpetually open, among other advantages.
In present legal scholarship, the idea prevails that prescription has an objective foundation, namely that of providing legal certainty to social order, by giving legal force to situations which result after a certain period of time. Therefore the theory that prescription has a subjective grounding– and thus that it is based on a presumed abandonment or carelessness of the holder of the claim affected by prescription– is nowadays rejected by most authors.
Spain
-
- By Miquel Martín-Casals, Professor of Civil Law, University of Girona, Spain, Albert Ruda-González, Associate Professor in Civil Law, University of Girona, Spain
- Edited by Miquel Martin-Casals
-
- Book:
- The Borderlines of Tort Law
- Published by:
- Intersentia
- Published online:
- 15 November 2019
- Print publication:
- 29 August 2019, pp 507-568
-
- Chapter
- Export citation
-
Summary
QUESTIONS
TRACING THE BORDERLINES
A. DISTINCTION BETWEEN TORT AND CONTRACT
The Spanish Civil Code (CC) has followed the Franco-Italian model with regard to the classification of the so-called ‘sources’ of obligations, a model which in its turn has its origin in the Institutes of Justinian (I. 3, 13, 2). As is well known, the latter arranged obligations in four classes, namely contractual, quasi-contractual, delictual, and quasi-delictual. The Civil Code devotes its Book 4 to the rules on ‘Obligations and Contracts’. Title I of that Book starts with a set of ‘General Provisions’, among which a rule on ‘sources of obligations’ is included (art 1089), according to which, ‘Obligations arise from the law, from contracts and quasicontracts and from unlawful acts or omissions or those in which there is any kind of fault or negligence’. A similar rule can be found in the private law of the regional civil law of Navarre (art 488 of the ‘Compilation’).
Contract as such is not defined by the Civil Code; however, it is provided that ‘contract exists from the time where one or several persons consent to bind themselves vis- a -vis another or others to give something or to provide a service’ (art 1254). Therefore, the essence of contract is that the parties bind themselves (see also art 1258) and they may thus enforce such agreement as if it was law inter partes (art 1901). The contract is thus lex contractus (as the Decision of the Supreme Court (Sentencia del Tribunal Supremo, STS) 17.10.2001 (RJ 2001, 8641) puts it). By contrast, obligations arising from tort are subject to the tort law provisions in the Civil Code itself (arts 1902 – 1910). Tort is also devoid of statutory definition, however the general rule is that whoever causes damage to another in a negligent way is bound to compensate him (art 1902).
The Spanish Civil Code tackles both kinds of liability in a separate way. Contract law rules are provided for in Book 4, Title II (‘On contracts’, ie arts 1254 – 1886), whereas tort law rules are included in Chapter II (‘On the obligations which arise from fault or negligence’) of Title XVI (‘On the obligations which are created without an agreement’) of the same Book (arts 1902 – 1910).
Chapter 15 - Motor Vehicle Accidents Caused by Game Wandering onto Spanish Roads
- from Part II - State of the national art on risk
-
- By Albert Ruda, University of Girona
- Edited by Matthew Dyson
-
- Book:
- Regulating Risk through Private Law
- Published by:
- Intersentia
- Published online:
- 13 October 2018
- Print publication:
- 31 January 2018, pp 361-374
-
- Chapter
- Export citation
-
Summary
Spain is a country of many complex relationships: the centre's relationship with the ‘foral regions’ like Catalonia and the Basque country; religion and learning; humankind and animals. Spain's size and widely distributed historic cities mean there is room for diversity. It also means that two common activities can easily collide: the use of roads and the presence of animals. In particular, how Spanish tort law manages collisions or similar accidents between game and motor vehicles can unlock significant insights into how Spanish law conceives of, creates liability from and seeks to control risk. This area of law has recently undergone a significant change in legal regulation at the point where two strict liability regimes, one for hunters and one for drivers, overlap. That change has highlighted the politicisation of risk and liability in Spain and the role of legislative change in responding to perceived liability risk perhaps more than the risk of harm to others.
GAME IN SPAIN
Spain haof game onto public roads, driven by hunting or by shift s in the population s long been a country where hunting is a very important activity, not only in connection with culture and leisure, 1 but also for economic reasons. At the same time, hunting is something which divides society between those who hunt or earn a living from it, and those who oppose it for environmental or other reasons. The risks of the activity of hunting are significant. Hunting commonly involves guns, thus it is a source of risk in the sense described in the first Spanish chapter (Ch. 6); but hunting also involves the behaviour of wild animals themselves, and thus is a source of non-man-made possibilities of harm, i.e. danger in the sense pointed out already. A specific problem is the escape density.
Accidents caused by escaping game have become a significant and technically complex area. According to a study carried out on behalf of an insurance company, the animals involved in motor vehicle accidents are mostly wild boars (33% of cases), dogs (30%) –obviously not game –or roe deer (17.5%).
Chapter 6 - Regulating Risk Through Private Law: The Spanish Approach
- from Part I - Risk Overviews
-
- By Albert Ruda, University of Girona
- Edited by Matthew Dyson
-
- Book:
- Regulating Risk through Private Law
- Published by:
- Intersentia
- Published online:
- 13 October 2018
- Print publication:
- 31 January 2018, pp 139-164
-
- Chapter
- Export citation
-
Summary
INTRODUCTION
This chapter discusses how Spanish tort law regulates risk. The first part will deal with risk from a general perspective. As will be shown, risk (riesgo in Spanish) is one of the cornerstones of Spanish tort law. It is indeed impossible to understand how this tort law (responsabilidad extracontractual) has evolved during the last half-century and is currently shaped without making significant reference to the idea of risk. Therefore, this chapter will deal with the connections of risk with the general conditions of tort liability and will analyse how risk has infl uenced the judicial interpretation of tort law rules. Particular reference will also be made to some institutions or rules with regard to which risk plays a central role, namely development risks (riesgos del desarrollo), assumption of risk (asunci ó n del riesgo) and insurance.
SPANISH TORT LAW IN THE ‘RISK SOCIETY’
It may be interesting to note that, from a linguistic point of view, the English word ‘risk’ may have a Spanish origin.1 In fact, Spanish has two different words to refer to ‘risk’, namely peligro (danger) and riesgo (risk). Both of them are related to the Latin word periculum, and are therefore used interchangeably. The Latin root of riesgo (‘riesco’ in ancient Spanish) is resecare (‘to cut’), from which resecum (‘cutting’) also derives. There also seems to be some connection with another word, risco (a steep rock). According to the Royal Academy Dictionary, riesgo is the ‘contingency or proximity of damage’ and peligro means ‘ risk or imminent contingency that some evil takes place’. Riesgo is therefore any possible detrimental event that is capable of changing the normal and foreseeable course of an action or even unforeseeably altering a state of affairs.
Risk is a concept that permeates many areas of Spanish law. In contract law, it mainly refers to the possibility of the object of the contract becoming impossible. Such a situation may arise not only in contract – especially in sales – but also with regard to other types of obligations, as in the case of dowries, guardianship or legacies. In these contexts, the concept of risk refers to the question of who should bear the damage after the loss of a thing.
6 - Blurred borders in Spanish tort and crime
- Edited by Matthew Dyson, University of Cambridge
-
- Book:
- Comparing Tort and Crime
- Published online:
- 05 August 2015
- Print publication:
- 02 July 2015, pp 223-270
-
- Chapter
- Export citation