18
ALRAQABA . ISSUE 15
Legislations
In this sense, the provision shall only apply
if there is a general exceptional incent not
foreseen at the outset of the contract, which
arose after concluding the lease agreement
and prior to completing its performance,
rendering the performance of the contractual
obligation burdensome.
Based on the foregoing, if the requirements of
the theory of emergency circumstances were
met, which apparently apply to the COVID-19
situation, the judge may, by request from the
contract parties, reconsider the balance of the
contract or decide that the contract shall be
terminated and that the other party shall be
entitled to fair compensation.
It is worthy to note that the distinction between
the theory of force majeure and the theory of
emergency circumstances is that in the first
theory, the occurrence of the incident leads
to rendering the performance of the obligation
impossible. In this case, the lease agreement
would, therefore, be terminated by force of law.
On the other hand, the case with the emergency
circumstances theory is different, where
performing the obligation is still possible yet
burdensome (not impossible).
The role of the Kuwaiti legislature in
revising lease agreements during the
COVID-19 pandemic:
Amid the COVID-19 crisis, the Kuwaiti
legislature did not stand still towards the legal
consequences that notably affected both the
lessee and the lessor in rental contracts. The
considerable attention of the legislature on
this particular aspect had emerged from the
belief that such consequences could result in
serious financial losses to the local economies.
Therefore, on August 31, 2020, the Kuwaiti
legislature has promulgated Law No. (15) of
2020, amending specific provisions of the
Decree-Law No. (35) of 1978 concerning real
estate leasing. Article (1) of Law (15/2020)
stipulates that the tenant may not, in any event,
be evicted from the leased premises if he/
she failed to pay the rent during the period
under which the Council of Ministers decides
to disrupt or suspend work at all public
facilities within the State for health and safety
considerations and for the ultimate interest of
the State. The text of this Article demonstrates
the legislature›s efforts in protecting the two
parties of a lease agreement, stating that the
tenant may not be evicted from the leased
premises during suspension or disruption of
work owing to public health considerations
(which applies to the case with COVID-19
pandemic). This provision would lead to
balancing the contractual relationship between
the lessor and the tenant. The payment of rent
in such cases shall be postponed according to
the conditions defined by the court.
It is noteworthy that the Kuwaiti legislature has
implemented the amending Law No. 15/2020 on
an ex post facto basis. The amendment came
into effect from the outset of the COVID-19
pandemic in Kuwait pursuant to Article (4) of
the same Law, which stipulates that “the Prime
Minister and the respective ministers shall
implement this Law, which shall be published
in the Official Gazette and come into force
with effect from 12 March 2020”. Finally, I
believe that the Kuwaiti legislature took the
right choice in protecting the tenants affected
by this pandemic from being evicted from
their leased properties.
References:
• Decree-Law No. (35) of 1978 on Real Estate Leasing.
• “Lease Agreements in the Kuwaiti Civil Code and the Law
of Real Estate Leasing and its Amendments according to
the Provisions of Kuwaiti Court Rulings” , a book by Bader
Jassim Alyaqoub.
• Decree-Law No. (67) of 1980 on the Issuance of Civil Code.
