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.