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ALRAQABA . ISSUE 15
Publications
it has on the contractual obligations.
Suppose we are standing before an immediate
contingency that makes fulfilling a contract
obligation impossible and depleting in other
cases for the debtor; in this situation, we are
encountering a force majeure that calls off the
obligation by the force of law or the termination
of the first contract. However, for the second
contract, we shall face a contingency situation
that permits the judge to restore the obligations
reasonably based on their discretion and
on whether to narrow down or loosen up the
obligation in question.
As a result of this and based on the previously
mentioned statement, the way Novel
Coronavirus pandemic is perceived, whether
as a contingency condition or a force majeure,
depends on the judges’ conception after
examining the implications of this pandemic
and detecting the impossibility and depletion of
performance.
Second: Juridical applications
In a court decision, the following statement
stipulated that: “Article no. 215 of the previously
mentioned law states that when a force majeure
occurs in a contractual obligation that makes its
fulfillment actually or legally impossible during
the assigned time, then the obligation shall
be terminated. The force majeure conditions
of which an obligation is to be terminated is
when the fulfillment of said obligation is entirely
impossible. However, if the impossibility was
temporary and was over before its fulfillment
and whenever it does not overlap with its set
purpose, then the obligation in this temporary
situation does not call for fulfillment. Its
implication is limited to its termination until it
can be fulfilled when the contingency is over.
The postponed obligations are to be resumed.
The contingency does not affect the validity of
the contract of which remains subject to the
contracting parties’ legislations that govern the
relations between its parties...”
Appeal for cassation no. 334 of the year 2006
issued on 17/ 06/ 2007
As for the decision, it has been issued due
to the insurmountable factors that prevented
debtors from fulfilling their obligations
right after the Iraqi invasion of Kuwait. The
Judge considered this case a force majeure
that partially hindered the fulfillment of the
obligations. It was temporarily impossible to
fulfill the commitments due to the invasion. The
completion of said obligation in this context
shall be possible when the circumstances are
over.
To understand the distinction between a partial
force majeure and contingency situations, it
must be affirmed that a partial force majeure
makes it impossible to fulfill the obligation
entirely; however, that is only for a limited
period of time and shall be terminated with the
elapsing of said time. As for the exceptional
conditions, it is depleting, yet not impossible, for
the debtors to fulfill their obligation.
The Second Requirement
The legal positions of contracts and
administrative decisions in light of the Novel
Coronavirus outbreak and the SAB’s role in
auditing entities responding to said pandemic
First: The legal situation of the administrative
contracts in light of the Coronavirus Pandemic
Reflecting on the statements mentioned above
on administrative contracts, it is found that
there are a number of contracts that have not
been affected at all by the measures that the
