COVID-19 : What happens to your contracts?

The COVID-19 pandemic has certainly entailed a number of uncertainties in the previous months. What about the agreements you concluded?

In general, when you enter in a contract, whether a document is written or you simply conclude a verbal agreement, you are bound to perform the obligations to which you have committed. Similarly, you have the right to demand that the other contracting party fulfills his part of the contract. In the event of failure, the law provides remedies such as damages, reduction of the correlative obligation or even resiliation of the contract.

In case of superior force

The situation becomes more complex when an event that could qualify as superior force occurs and causes the debtor to be unable to fulfill his obligations. Indeed, the law provides that, under certain conditions, the debtor could be freed from his obligations, without being liable for the injury caused to the other contracting party. However, he cannot require the other party to fulfill his correlative obligations under the contract.

However particular attention must be paid to the terms of the contract. It is possible that the agreement specifically stipulates what happens with the obligations of the parties in case of superior force. The terms of the contract can stipulate something different from the provisions of the law and a rigorous analysis of the agreement is recommended. Moreover, it must be noted that, in some cases, a “superior force clause” can be judged abusive and be invalidated.

Debating whether a situation could be recognized as superior force always depends on the circumstances. Thus, the same incident could be qualified differently depending on the context. Essentially, the law and jurisprudence indicate that the three following conditions must be met for a situation to be considered superior force.

• The event must be unforeseeable, meaning that a prudent and diligent person put in the same circumstances as the contracting parties at the time they entered in the contract should not have been able to anticipate or predict its occurrence;

• The event must be irresistible, meaning that a prudent and diligent person put in the same circumstances as the contracting parties should not have been able to prevent the event from occurring, nor to take necessary action to resist it. Moreover, the situation must make the obligation absolutely impossible to fulfill, not only make it more difficult or expensive to perform.

• The event must be exterior, essentially meaning that it is not caused by the debtor;
We can thus think that many will argue that the COVID-19 and the government measures that were taken to contain it have represented a case of superior force preventing them from performing their obligations and liberating them from it.

What should you do if you do not receive the services you paid for?

If the other contracting party to your contract claims superior force to be liberated from his obligations, you are not necessarily left without remedy. In fact, subject to the content of your contract, you could ask for a reduction of your correlative obligations in the same proportion.

A good example would be the gyms, for which the government has ordered the closure during several weeks. As a result, numerous clients will not have received the services they paid for. Even if it is considered that a superior force has kept the gym from providing its services, the clients could correlatively cease to pay their membership while the facility is closed.

Concretely, if your gym continues to charge you during that period, you have the right to demand the suspension of the payments during the closure and to ask for a refund. If you have already prepaid your membership, you are entitled to request a proportional reimbursement for the closure period. If the gym declines your demand, you could institute legal proceedings.

However, if you want, you can always accept a proposition of your gym to settle amicably, for example, a proposition of a credit for a period equivalent to the closure. Yet, the merchant cannot force you to accept the credit instead of a refund. Moreover, it must be noted that the law provides that the duration of the contact with a gym shall not exceed one year.

If you wish to obtain more information and to receive advice regarding your own situation, we invite you to contact one of our lawyers.

Text written by Me Caroline Poulin