In times of crisis such as the one Spain is currently facing due to the COVID-19, both personal and commercial circumstances may drastically change without someone or something being able to avoid it; exceptional circumstances during which individuals and companies are prevented from complying with any contractual obligation of any kind they are engaged in. In this scenario, the so-called “rebus sic stantibus” clause becomes important. 

The purpose of this clause is to cope with substantial amendments to conditions that might occur unexpectedly and unpredictably, and that will undoubtedly affect the contracting parties during the validity of the contractual relationship. These amendments, presumably, avert current conditions from those that favoured the contract signing under the agreed terms and make that the fulfilling of obligations and commitments arising from the contract cause extraordinary damages to one of the parties.

The health crisis that we are undergoing might serve us well as an example of substantial amendments to conditions; phenomenon we might observe in the transportation sector (cancellation of maritime line services, cancellation of flights, breach of charter contracts, paralysis of supply chains, suspension of orders, etc.) as well as in many other sectors of industry and commerce, which in general terms have been severely struck since the declaration of the state of alarm. A crisis that has been defined by the World Health Organization (WHO) as an absolutely unpredictable and unavoidable situation.  

In a situation like this, the “rebus sic stantibus” clause might open up possibilites for contract amendments on the basis of articles 7 and 1258 of the Civil Code, among others, in accordance with the requirements of good faith. This clause does not, under any circumstances, have recessive, resolutory or extinctive effects on the contract; the purpose of this clause is to set a framework of renegotiation of conditions of the contract between the parties in order to compensate, to some extent, for the generated imbalance.   

Although the legal regulation does not explicitly recognize this definition, the Spanish jurisprudential doctrine does as it is evidenced by the Judgements delivered by the Supreme Court in the previous national economic crisis. However, this clause does not apply automatically and in order to be able to apply the “rebus sic stantibus” clause, the jurisprudence lays down some essential requirements: 

• – Extraordinary alteration of circumstances during the validity of the contractual relationship, in contrast to the circumstances existing at the time of the execution of the contract. 
• A radical change in the obligations assumed by one of the parties that destructs the balance of the services in an exorbitant manner.
• Everything is produced by the occurrence of absolutely unpredictable circumstances.

As we can observe when analysing the requirements for the application of the clause demanded by the jurisprudence, its historical application has been very restrictive. Nonetheless, the scenario of the economic crisis (for instance, the 2009 crisis) has extended its application since such circumstances may seriously affect the development of contractual relations.

Hence, the Supreme Court in its Judgment No. 214/2019, rec 3204/2016, of the Civil Chamber, First Section, April 5 2019, and in the Judgement No. 455/2019, of 18 July 2019, in order to accept the alleged amendments to contract, stipulates that these modifications must alter the relationship and the provisions of the contract, and must occur in an unpredictable and unavoidable manner. In other words, if the parties have been able to assume expressly or implicitly the risk that something might occur or they had to do so because this risk already existed at the time of executing the contract or it was reasonably predictable, the clause cannot be invoked. Nor can it be invoked in cases where the alteration is within the normal risks of the contract.

Similarly, in its Judgement of the First Civil Chamber No. 156/2020, rec 2400/2017 of, March 6 2020, the Supreme Court stipulates that, in order to be able to apply the clause, the referred contract must have duration equal to or more than one year, must be of a consecutive nature or of deferred execution. In fact, the Court assumes that it is unlikely that, in the case of contracts of less than one year, anything extraordinary and unpredictable, which would create a disproportion between the claims of the contracting parties, might occur. It remains to be seen if this aspect prevails in a situation such as that arising from the COVID-19 crisis. 

In addition to these two criteria, the Supreme Court considers that in order to effectively apply the “rebus sic stantibus” clause, the alleged situation cannot be contemplated or qualified as a habitual, normal or inherent risk or deriving from the contract (Judgement of the SC (Civil) Section 1, S 30-06-2014, rec 2250/2012).

If we analyse the actions of the Spanish Government, we can realize that it is adopting particular measures which seem to be inclined towards the effectiveness of the clause. An example of this is the Royal Decree Law 11/2020, of March 31, which exceptionally authorizes the suspension of electricity, natural gas and oil derivative products invoicing during the period of validity of the State of Alarm. 

As a conclusion in view of this difficult crisis situation that individuals and companies are facing, from AIYON Abogados, we advise to avoid, to the most possible extent, disputes and litigations in a situation that affects us all. Therefore, we recommend to preserve the contractual balance and respect the criteria of equity and good faith that should always underpin the agreements, promoting so the reestablishment of the balance in the relationship. For that reason we advise to foster agreements and negotiations between the affected parties to a contract, who can always count on the expert advice of our team of lawyers in pursuit of a satisfactory conflict resolution.      

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