DIRO-Business_Corona

Contract law in the Corona crisis
Publications

Current publications on contract law in the Corona crisis

Italy: forced mediation against corona effects

15. Juni 2020

The corona virus has not only hit Italian society and the economy of the boot state hard. The legal consequences are also immense. And so, between Bolzano and Palermo, they are preparing for a wave of legal proceedings - with "forced mediation". The Italian justice system is known to grind slowly and litigation is expensive. This is "poison" for disputes, especially in the economic sphere.  - Mediation is faster and cheaper; at least if it leads to a result, namely a solution found by the parties themselves with the help of the mediator.

So what could be more obvious than to solve legal disputes in connection with contractual disruptions caused by the corona pandemic by means of mediation? Or at least to try to do so? Even if the parties have not included a mediation clause in the contract concerned?

The Italian legislator has chosen this approach: In the context of the parliamentary approval of the Legislative Decree "Cura Italia" as a law, at the end of June, by introducing paragraph 6ter in Article 3 of Legislative Decree No. 6/2020, the failure of a previous mediation was introduced as a procedural condition for a judicial procedure when the subject of the dispute is a contractual dispute originating in measures to contain the corona epidemic.
In practice this means, for example, that German exporters whose Italian customer does not want to take delivery of the goods or does not want to pay for them (or only later) by invoking the lockdown, cannot simply apply for a default summons without first trying mediation. Or the German customer who was dependent on parts from Italy within the framework of a supply chain which were not delivered or were delivered late due to the lockdown - he cannot enforce any claims for damages and/or contractual penalties in court without a prior attempt at mediation.

This type of "forced mediation" as a procedural prerequisite for subsequent legal action is not new in Italy, by the way: such mediation has already been provided for in numerous constellations since 2010.
15. Juni 2020

The corona virus has not only hit Italian society and the economy of the boot state hard. The legal consequences are also immense. And so, between Bolzano and Palermo, they are preparing for a wave of legal proceedings - with "forced mediation". The Italian justice system is known to grind slowly and litigation is expensive. This is "poison" for disputes, especially in the economic sphere.  - Mediation is faster and cheaper; at least if it leads to a result, namely a solution found by the parties themselves with the help of the mediator.

So what could be more obvious than to solve legal disputes in connection with contractual disruptions caused by the corona pandemic by means of mediation? Or at least to try to do so? Even if the parties have not included a mediation clause in the contract concerned?

TOURISM LAW: Voucher solution for cancelled holidays in Greece

15. Juni 2020

The COVID-19 crisis is first and foremost a health crisis, which is why the task of individual states was initially to protect the health of their citizens. The measures taken in each case are essentially the same worldwide. Tests. Curfew. Masks. However, in addition to the health crisis, COVID-19 is also an economic crisis as a consequence of the health measures taken. For example, due to the curfew and the associated closure of non "systemically important" businesses, the crisis also placed an enormous financial burden, especially on smaller companies.

The tourist country Greece, which is or will be severely affected by the restricted air traffic and - associated with this - the lack of holidaymakers, is no exception. On the contrary, tourism is one of the economic sectors most affected by the coronavirus pandemic.
This is also shown by the increased number of enquiries from consumers who have cancelled their long-planned trip to Greece because of the pandemic and are now demanding the return of any advance payments or security deposits. What is now valid for the cancelled trips to Greece?
This contribution is intended to highlight an example of a measure taken by the Greek government in an attempt to mitigate the negative economic consequences for businesses in the tourism sector.

Complete article: Leistungsstoerungen Covid-19 Gutschein-Lösung für stornierte Urlaubsreisen GR.

Avoidance of liability due to COVID-19-related performance disruptions through force majeure clauses?

08. Juni 2020

As feared - not by the pandemic spreading COVID-19 virus itself, but by the various measures taken by almost all countries of the world - international supply chains have collapsed and global trade has come to a virtual standstill worldwide. In this respect, not only the question of responsibility and liability arises, but also the possibilities of exoneration and release from liability.

Complete article: Covid-19 - Haftungsvermeidung Force Majeure-Klauseln.

Miete zahlen trotz Ladenschließung?
Das COVID-19-Gesetz und seine besonderen Regelungen zum Mietrecht

Author: Nina Haverkamp, Attorney at Law, ahs law firm, Köln, Germany
05. Juni 2020

Right at the beginning of the officially ordered closures, the large chain stores announced that they would no longer pay rent. This is understandable, as the calculated income was not forthcoming, from which the rents should have been paid. In return, landlords have announced that they will terminate the rental agreements without notice. Also understandable. However, legally just as untenable as the non-payment of due rent.
To cushion the economic hardships of Corona, the COVID-19 law was passed on 27.03.2020. And this with special regulations for landlords and tenants. The explanatory memorandum to the law states
"Landlords may not terminate the lease for rent debts arising from the period from 1 April 2020 to 30 June 2020 if the rent debts are due to the effects of the COVID 19 pandemic. The obligation of the tenants to pay the rent remains in principle in return".
And this is how it has been implemented in the law: Tenants have to pay rent - even when their shop is closed. And landlords are not allowed to terminate if the rent is not paid due to a pandemic.

Complete article: Covid-19 - Miete zahlen trotz Ladenschließung.

Deficiencies in times of the Corona Pandemic (Part 1)

Author: Guido Imfeld, law firm dhk, Aachen
 
27. April 2020

When performance problems are addressed in these times of the corona pandemic, the concepts of impossibility and force majeure necessarily arise. However, this is too short a thought. With this contribution we would like to show that the principle "pacta sunt servanda" may not withstand this crisis undamaged. Because in these times, the provision of contractually owed services can often only be achieved at disproportionate economic expense or not at all. Under the impression of the economic consequences of the First World War, the Reich Court, in its landmark decision Dampfliefervertrag (RGZ 100, 129,131 f.), focused on the reasonableness of the fulfillment of the contract and adopted the legal-historical idea of the "Clausula doctrine" (clausula rebus sic stantibus) by developing the doctrine of the elimination of the basis of the transaction in judicial law. Since the reform of the law of obligations in 2002, the doctrine of the basis of the business has been codified in § 313 BGB.

Complete article: Covid-19 - Leistungsstörungen in Zeiten der Corona-Pandemie_Teil 1.

Deficiencies in times of the Corona Pandemic (Part 2)

Author: Guido Imfeld, law firm dhk Aachen
 
27. April 2020

Alternative: Interference with the basis of the transaction
The impossibility of performance discussed so far leads, as explained, to the debtor's obligation to perform ceasing to apply if objective impossibility exists. He loses his right to consideration. He does not owe any compensation if he is not responsible for the impediment to performance. However, in the case of practical impossibility or subjective impossibility pursuant to section 275 subs. 3 of the Civil Code, the debtor's performance must set out in detail the conditions of the facts. However, in many cases, especially in ongoing business relationships and production chains that have been built up over many years with a great deal of effort, the elimination of the obligation to perform does not necessarily do justice to the interests of the parties involved.

Complete article: Covid-19 - Leistungsstörungen in Zeiten der Corona-Pandemie_Teil 2.