Dr. Islam Hashem Saad
Assistant Professor of Civil Law, Department of Law
College of Science and Human Studies at Dawadmi,
Shaqra University, KSA

Abstract:

This research deals with studying, analyzing, and comparing provisions of the theory of necessity and its impact on contractual obligations in light of the Corona pandemic in both civil law and Islamic jurisprudence. And since contracts and conditions impose obligations on the contracting parties, in implementation of the general principle: “The contract is the law of the contracting parties” and what is meant by it is respect for the content of the contract, whether by the contracting parties themselves or by the judiciary; the contracting parties must implement it in its entirety, and this is what we find in most Arab legislation. However, if general exceptional incidents occur which were not possible to be foreseen, and the occurrence of which leads to the implementation of the contractual obligation, and if it does not become impossible, it becomes burdensome for the debtor so much as to threaten him with a heavy loss. The judge may, according to the circumstances and after balancing the interests of the two parties, reduce the burdensome obligation to a reasonable extent, and any agreement to the contrary would become void.
In the process of this general epidemic, which has undoubtedly left some of its effects on contracts and obligations, we can see that it created a rift between the contracting parties, with which the implementation of the obligations between them may stumble, including the delay in implementing commitments, which is legally described as the debtor’s procrastination, which leads to contractual responsibility for breaching the contractual obligation and what is meant here is contractual obligations whose implementation is slackened in time. It is undoubtedly an alien reason that the creditor and debtor have no control over what prevented the implementation of the obligation. The theory of necessity is one of the most important theories that the Islamic jurisprudence researchers and jurists have turned to for a long time. They set rules for it that are commensurate with what has affected the whole world now in light of the Corona pandemic, through the means of protection established by Islamic Sharia in two important principles: (Necessities allow prohibitions) and (Necessity is valued in proportion), and the theories of emergency circumstances and force majeure emerge from its womb.
In fact, the problem that the contracting parties and the judge may face is the classification of the pandemic, either into a force majeure or an emergency circumstance. To discuss this topic and the questions it raises, this research paper relied on the comparative method by trying to understand the concept of each of the theories of necessity, emergency circumstances, and force majeure, and the conditions and scope of application of each of them. Then, it compared them, within a legal and jurisprudential study in which the similarities and differences were highlighted. The theory of necessity is a comprehensive theory for all branches of law, and its basis is the assumption of a grave danger threatening a specific obligation which necessitated dividing the research into three main sections: the first presents a brief overview of the theory of necessity; the second deals with emergency conditions, force majeure and the pandemic between civil law and Islamic jurisprudence, while the third is devoted to the effects of the theories of emergency conditions and force majeure on contracts in light of the Corona pandemic.
The research concluded with a statement of the most important criterion for distinguishing between emergency circumstances and force majeure; If the implementation of the contract burdens the debtor, then we are facing an emergency circumstance, but if the implementation of the contract becomes impossible, then we are facing a force majeure. Subsequently, the research recommended that the judge should take into account the maximum extent to maintain the binding force of the contract, by referring the case to the dispute resolution committees, which offer them to reformulate their obligations in a way that achieves equality of obligations.

Keywords: contractual responsibility, emergency circumstances, force majeure, sudden accident, principle of will power.

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