Dr. Fares Mohammed Al-Ajmi
Assistant Professor of Commercial Law – Dept. of Law – College of Business Studies – The Public Authority for Applied Education – Kuwait

Abstract:

This research aims to apply the provisions of the theory of unforeseen circumstances to the new Covid-19 pandemic and clarify the legal effects of these provisions on the parties of commercial contracts. The research also studies the contractors’ agreements on the restoration of the contract’s balance amicably and highlights the regulations of the judge’s power to restore the economic balance of the contract, and the means that aid him. The research follows an analytical approach, which focuses on the analysis of legal texts in order to infer the legislator’s objectives from them and discuss the opinions of jurisprudence in this regard, in order to extract distinctions and shortcomings in this regard. To this end, the study was divided into two topics, the first of which studies the legal options available to parties of commercial contracts in the face of the pandemic, while the second studies the judge’s power to restore the economic balance of the contract.
The research concludes that the Kuwaiti legislator was able to deal with the effects of unforeseen circumstances witnessed by Kuwait in previous years, through special laws. It also emphasizes that civil law handled the issue of contract imbalance due to unforeseen circumstances in a good manner; however, it needs further amendments to address some of the cases resultant from practical application. Accordingly, the research recommends the intervention of the legislator by issuing a special legislation that deals with the economic and legal effects of the pandemic, amending some provisions of the civil law to address the deficiencies demonstrated by the reality, as well as eliminating the conflict between some legal texts.

Keywords: unforeseen circumstances, burdensome commitment, heavy loss, contract amendment.

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