56
ALRAQABA . ISSUE 15
Publications
Among these resolutions is the decision issued
during the meeting of the Council of Ministers
on Wednesday 11/03/2020. The resolution
called for Circular no. (7) of the year 2020 of
the Civil Service Commission. It provided that
the work in public entities, institutions, and
agencies shall be suspended for a period of
15 days for precautionary reasons and that this
time shall be considered as an official holiday
starting from 12/03/2020. The resolution issued
by the Council of Ministers during its meeting
on Monday 20/04/2020 and as stated within
Circular no. (11) of the Civil Service Commission
of 2020 on extending the suspension of work
while considering these days as (rest days) in
all ministries, public entities, and institutions (for
precautionary reasons) due to the Coronavirus
outbreak. What implications has such
suspension had on the administrative contracts
and decisions?
THE FIRST REQUIREMENT
THE LEGAL ADAPTATION WITH
THE NOVEL CORONAVIRUS OUTBREAK
First: Differentiating between contingency
conditions and force majeure
Before we start differentiating between the two
concepts, it is essential to mention that the
similarities between them lie in the element
of surprise . It is having an unexpected or
unanticipated event that the contracting parties
are unable to predict or mitigate. In other words,
an emergency or force majeure occurs when
the parties are unable to prevent it.
As for differentiating between both theories,
the following is to be considered:
The legislator has developed the contingency
circumstances theory within Article no. (198) of
the Civil Law. In order to meet the requirements
of having this theory, the law suggested the
following :
1. A contingency circumstance takes place
after concluding the contract and prior to
completing its performance.
2. Contingency circumstances are to be
exceptional - general and unpredictable. They
are unfamiliar; their occurrence is rare and is
not relevant to any of the contract parties or
cannot be predicted in the contracting.
3. Fulfilling an obligation becomes very depleting
for the debtor. This condition is vital since
the implication of emergency circumstances
may be limited to making the obligation
depleting but not impossible to the debtor .
Had it became impossible, then there is no
point discussing the theory of contingency
circumstances.
Those requirements are explicitly evidenced
by the Article stating that: “as a result of
its occurrence, carrying out the emerging
obligation shall be depleting, yet not impossible,
to the debtor...”
It is worth saying that the legislator has included
the contingency theory within the binding force
in the contract as an exception to the general
rule of “pacta sunt servanda”. This theory is,
therefore, considered as part of the general
system where parties are not permitted to agree
otherwise.
We may also find the legal regulation of the
force majeure theory in Article no. (215) of the
same law. It stipulated the following:
“1. In binding contracts between two parties,
whenever complying with an obligation deemed
impossible by one party for an external reason
