ALRAQABA . ISSUE 15
17
Legislations
First: The Theory of Force Majeure:
Article (215) of the Kuwaiti Civil Code
stipulates that:
1. If the performance of an obligation of a party
in a bilateral contract is found to be impossible
due to a cause beyond the reasonable control
of that party, then such obligation shall be
extinguished. The contract shall then be
terminated along with the corresponding
obligations of the other party.
2. If the performance of the obligation was
partially impossible, the creditor may, as the
case may be, either hold on to the parts of the
contract that can be executed or request to
terminate the contract.
In addition, Article (293) of the Kuwaiti Civil Code
stipulates that:
“In the event that a party failed
to perform his/her obligation in kind or if the
obligation was delayed, the debtor shall grant
compensation to the creditor for the harm
caused, unless the debtor proves that the failure
or delay in performing the obligation was due to
a cause beyond his/her reasonable control.”
These two articles of the Civil Code reflect the
theory of force majeure. The latter implies that if
it was impossible for one of the contract parties
to meet an obligation due to a cause beyond
the reasonable control of that party, then such
obligation shall be extinguished and the debtor
shall not be liable for failing to perform the
obligation. Consequently, the creditor shall not
be entitled to claim compensation against the
debtor for the latter’s failure to meet his/her
contractual obligation.
Force majeure can be defined as an
unforeseeable and unavoidable event that is
beyond control and renders the performance
of obligations impossible. These elements of a
force majeure event also apply to the COVID-19
pandemic, which entails that valid contracts
taking place during the period of this pandemic
may be terminated or suspended.
Second: Theory of Emergency
Circumstances
The theory of emergency
circumstances is regulated under
Article (198) of the Kuwaiti Civil Code.
This article states that where, after concluding
the contract and prior to completing its
performance, exceptional circumstances
that could not be foreseen at the outset of
the contract arise rendering the performance
of the contractual obligation burdensome
(although not impossible) and may result in
a considerable loss to the obligor, the judge
may, after considering the interests of both
parties, reduce the burdensome obligation to a
reasonable level. In this respect, the judge may
decrease the range of the obligation or increase
the consideration thereof. Any agreement to the
contrary shall be considered void.
In addition, Article (610) of the Civil Code
states that:
• If one of the parties encountered an
unpredictable situation in which continuing
to pay the rent would impose a burden, the
judge may, upon a request from that party
and after considering the interests of both
parties, terminate the lease agreement. In this
case, the other party shall be entitled to fair
compensation accordingly.
• If the termination of the lease agreement was
requested by the lessor, the tenant may not
be obliged to return the leased premises to
the lessor until compensation is granted or he/
she receives adequate insurance.
With respect to the above-mentioned legal
provision, certain requirements need to be met
in order for this provision to apply.
