Pandemics of properties in lease contracts
Dr. Nesf Issa Al Asfour
Judge at the High Court – Palace of Justice – Kuwait
After the emergence of the novel coronavirus pandemic, a problem appeared in the implementation of many financial contracts, including the special rights between the lessor and the lessee in the lease contracts. This pandemic clearly affected the nature of the relationship between the lessor and the lessee. Accordingly, this research deals with the nature of the legal problems raised by the loss suffered by the two parties to the lease contract, and the resulting weakness of their financial resources due to the crisis or the claim of creditors or other reasons, which undoubtedly entails many disputes over those rights and future obligations.
The research acquires its importance from the description of the practical problems between the landlord and the tenant in light of the impact of the Coronavirus pandemic on the lease contract, and the examination of the legal approach that achieves a balance between the contracting parties during the lack or impossibility of benefiting from the lease contract.
The research aims to shed light on the potentials of researching practical problems between the lessor and the lessee in general and understanding the conditions of their practical problems in light of the coronavirus pandemic, according to Islamic law and law in particular, through the descriptive analytical approach that compares between Islamic law and positive law.
The framework of the research is limited to studying the practical problems between the landlord and the tenant in light of the outbreak of the coronavirus pandemic in the State of Kuwait, as a number of workers in companies and civil or governmental institutions lost their jobs, general factories and supply and sales centers were disrupted, and the state’s agencies and facilities were disrupted. These conditions were considered in comparison to norms, systems and laws in force in the country.
The research showed the legitimate purposes to which financial contracts in general and the lease contract in particular refer, by appending these purposes to a number of ways in reconciling the legal purposes in the event of their conflict, then it touched on the definition of the term “pandemic”, and referring to teachings of the Prophet Muhammad (peace be upon him) in regard to such situations in order to clarify the scope of the situation of pandemics in the schools of jurisprudence, the jurisprudential dispute and their fields as well as their impact. The research also dealt with lack of usufruct from the leased property and the consequent rulings for Muslim jurists.
It then presented the conditions of lack of usufruct in the leased property according to extrapolating the conditions of contracts in the Coronavirus pandemic, and in regards to referring each case to its competent field to go along with rulings of jurists. The research concluded with clarifying the jurisprudential and legal approach according to the laws of the State of Kuwait to the problems of pandemics.
Keywords: pandemic situation, emergency conditions, force majeure, lease contract, corona pandemic.