ALRAQABA . ISSUE 15
57
Publications
that is also beyond their control, this obligation
is to be considered invalid. All corresponding
obligations by the other party are considered
fulfilled and the contract shall be nullified
by default.
2. If performing the obligation was partially
impossible, a creditor, as the case may be, has
the right to hold on to the parts of the contract
where execution is still possible, or S/he may
ask to terminate the contract.”
The article also differentiated between the
complete or absolute impossibility and
the partial or temporary impossibility of
performance.
According to this article, a complete or absolute
impossibility in performing the obligation shall
result in terminating a contract by the forces
of law.
In case of a partial or temporary impossibility,
the article stated that execution of a contract
shall be suspended and the creditor shall be
given the option, based on the circumstances,
to hold on to the parts that can be carried out or
ask for a termination of the contract.
The differences between the contingency
and the force majeure theory are summarized
as the following:
First of all, the substantial difference lies in the
regulating provision of the force majeure theory.
It is limited to the cases over which fulfilling an
obligation is impossible yet not depleting to the
debtor in alignment with the regulating provision
of the contingency theory .
• The contingency theory is considered an
exception to the rule of “pacta sunt servanda”.
It is a medium to amend the contract to
restore the contracting balance despite the
contracting parties’ will. As for the force
majeure theory, it is one of the main reasons to
nullify and terminate the contract.
• The implications of the contingency theory
make fulfilling an obligation quite depleting
to the debtor. As for force majeure, fulfilling
an obligation is considered entirely or
partially impossible.
• The contingency theory allows the judge to
amend the contract to restore its economic
balance. As for force majeure, a contract
is terminated by the force of law in case
of complete impossibility. Suspension in
fulfilling contractual obligations in the case
of partial impossibility also takes place until
the incident passes.
After demonstrating the differences between
the abstract theories, it is worth discussing
whether pandemics, namely, the Coronavirus, is
considered a contingency or a force majeure.
Before getting to answer this question, we
would like to ask a different question first.
Is it possible for us to explicitly address the
incident known as the Coronavirus pandemic
and disregard its implications on the validity of
contracts and the parties’ obligations?
It can be noticed that when we are amid a
particular contingency, in this scenario, it is the
Coronavirus pandemic; its implications on the
contracts and parties’ obligations shall differ
based on the nature of the contracts and the
obligations to be fulfilled.
For example, fulfilling an obligation can be
either entirely or partially impossible for some
time in a number of contracts; while in others,
fulfilling an obligation may be depleting yet
not impossible.
Thereon, adaptation may not be correlated with
the contingency itself, but with the implications
