Prof. Mohamed Irfan Al Khatib
Professor of Civil Law – Law Department – Ahmed bin Mohamed Military College
Doha – Qatar

Abstract:

Following an in-depth and comparative approach, this research presents an academic study on how the Latin and Anglo-Saxon systems respond to the health crises afflicting the current contract, using the COVID 19 virus as a model for these crises. Referring to two main dimensions, the first dealt with the general philosophical framework for this interaction between the two concepts of abstinence-based on the principle of the binding force of the contract, and response based on the principle of good faith. The second presented this arrangement in its own legislative framework between two hypotheses: contractual resuscitation represented by the theory of emergency conditions and hardship, and contractual death represented by force majeure and frustration. The study then concludes with a legal analysis of the nature of each dimension and its expected consequences.
The research suggested two main conclusions. The first is that despite the difference and differentiation of methodologies employed for dealing with these crises between they affirm the unity of the goal to reach a fair and equitable contract implementation that responds to these crises. The second is the assertion that the philosophy of dealing with these crises will inevitably be different from those philosophies used before the Coronavirus pandemic, which transferred dealing with these crises from the principle of “exclusion” that preserves the original notion, to the exception of the “principle” by transforming it into an original notion.
Accordingly, the research recommended the necessity of strengthening legislative convergence, especially the objective approach between the two systems. It is hoped that the Jurists of jurisprudence and law will engage in more brainstorming and analysis to extend bridges of thought and aid to the legislative and the judicial systems. Additionally, these Jurists should adapt jurisprudential ideas and propositions that help them form a legal thought more forward-looking into the future and its challenges, in light of a pandemic that has changed completely from our concepts related to the contract and crisis response.

Keywords: Binding force of a contract, Principle of good faith. Majeure force. Emergency conditions. Contract balance.

Read Full PDF Text (Arabic)