Dr. Anadel Al Mater
Assistant Professor of Civil Law – Kuwait International Law School

Abstract:

The objective of this research paper is to determine the extent to which COVID-19 Pandemic is considered as an implementation of the force majeure theory on binding contracts along with the impacts thereof in accordance with Decree No. 67 in 1980 of the Kuwait Civil Law. The paper provides a comparative analytical study by projecting general rules of the force majeure theory on the COVID-19 Pandemic, inspired by the decision of the French Court, Colmar Court of Appeal, Sixth Chamber, March 12th, 2020, case No. 01098/20.
It also demonstrates all opinions regarding the extent to which the COVID-19 Pandemic is considered a force majeure. Moreover, the paper sheds light on Arab and non-Arab laws, including the French Civil Law with its novel articles such as Article 1218, which includes the force majeure that distinguish its permanent and temporary impacts. Besides, the paper tackles a stipulating pre-consent that includes some amendments on the impact of force majeure, which is regarded as a remedy found in the French Civil Law and its recent amendments. However, the Kuwaiti legislator did not explicitly declare that the debtor bears liability for losses per mutual consent, which may be considered a new addition to the Kuwaiti legislator.
The findings focus on adopting the criteria that can influence identifying whether COVID-19 Pandemic is a force majeure. Recommendations include assigning independent judicial authority to handle disputes resulting from COVID-19 Pandemic, particularly labor and rent issues. The paper also recommends initiating new legislations such as specific texts that constitute the general framework of the concept of force majeure, including specific definition and stipulations, inspired by legislations in some Arab countries similar to the French law of 2016.

Keywords: debtor, loss, contract, obligations of the parties, Kuwaiti civil law

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