{"id":20467,"date":"2022-10-19T12:21:43","date_gmt":"2022-10-19T10:21:43","guid":{"rendered":"https:\/\/it.andersen.com\/?p=20467"},"modified":"2026-03-09T17:30:35","modified_gmt":"2026-03-09T16:30:35","slug":"litigation-arbitration-newsletter","status":"publish","type":"post","link":"https:\/\/it.andersen.com\/en\/litigation-arbitration-newsletter\/","title":{"rendered":"Litigation & arbitration service line newsletter: rebus sic stantibus and force majeure clause"},"content":{"rendered":"

The new edition of the Litigation & Arbitration service line newsletter is dedicated to extraordinary change in economic relations<\/strong>, with a special focus on Belgium, Germany, Hungary, Italy, Macedonia, Malta, Poland, Romania, Slovenia, Spain and Switzerland situations. In this publication, we address two constructs that will be the most common basis for legal claims: the rebus sic stantibus clause and the force majeure clause – as topics of particular interest to companies doing business internationally, especially those operating in Europe.<\/p>\n

Andersen professionals explain how on legal grounds we can deal with extraordinary changes in economic relations. The rebus sic stantibus and force majeure clauses are and will continue to be of great importance in litigation. In many cases, the use of these clauses may prove to be a solution that, with proper argumentation, can save the situation of the entrepreneur.<\/p>\n

The rebus sic stantibus clause<\/h3>\n

The rebus sic stantibus clause refers to the impact of a change of circumstances on a contractual obligation. Rebus sic stantibus complements another principle: pacta sunt servanda (“contracts must be honored”). Rebus sic stantibus, however, only applies in extraordinary situations. The purpose of the clause is to modify the obligation in such a way that it could lead to the execution of the obligation<\/strong>. Where this is not possible, the obligation may be canceled.<\/p>\n

The force majeure clause<\/h3>\n

There is no clear definition of force majeure in the legislation. In various types of contracts, mainly those concluded between entrepreneurs, force majeure is indicated as a circumstance that excludes the liability of the parties for non-performance or improper performance of obligations. Force majeure is a circumstance that cannot be prevented even by the exercise of reasonable care. The parties to a contract often enumerate in the contract the situations that will be equivalent to force majeure. However, such identified examples are rarely a closed catalog. The most common examples of force majeure are fire, drought, flood, earthquake, other natural disasters, epidemics, and war. Currently, the Covid-19 crisis is often not indicated in contracts as a force majeure.<\/p>\n

As already mentioned before, force majeure excludes the parties\u2019 liability for non-performance of obligations<\/strong>. Importantly, in case of non-performance or improper performance of an obligation, there must be a causal relationship between the obligation and the force majeure event. In principle, the scope of possible force majeure actions depends on the construction of the contractual clause. The contract may provide for termination rules in the event of force majeure. Without contractual provisions in this regard, parties will be obliged to perform the contract after the force majeure event has ended.<\/p>\n

The Italian legislation<\/h3>\n

Andersen professionals Antonio De Paoli<\/a><\/strong> and Tatiana Karabanova <\/strong>analyze the present Italian situation, which gives e rise to legal issues that may jeopardize national and transnational trade and\/or contractual agreements. In particular, the aforementioned circumstances, together with the measures adopted by the Government to cope with the extraordinary events, can be legally framed as force majeure, which exonerates from liability those companies which are unable to fulfill their contractual obligations.<\/p>\n

The Italian Civil Code does not offer a notion of force majeure, which has instead been elaborated by case law. The concept of force majeure is identified only in broad terms in Art. 1467 of the Civil Code, under the heading “contracts for consideration<\/strong>“, which grants the debtor the right to request termination of the contract when the performance owed by it has become excessively onerous due to extraordinary and unforeseeable facts, extraneous to its sphere of action.<\/p>\n

In practice, natural disasters, civil wars, and epidemics are counted as force majeure. Also included among the causes that can be invoked are orders or prohibitions of the authorities \u2013 so-called factum principis – such as, for example, in the Covid-19 topic, those provided for by Italian Decree-Law No 18 of 17 March 2020, which act as an exemption of the debtor’s liability outside the existing contractual provisions, if relative evidence of such is provided.<\/p>\n

As for the companies whose activity is not prevented by the Authority, to benefit from the exemption of liability dictated by the special legislation, it is believed that they are burdened with proving a direct and absorbing causal link deriving from operating in a market that is directly affected by the containment measures dictated, precisely, to cope with an event attributable to force majeure, which was unforeseeable at the time the contracts were signed.<\/p>\n

In particular, the jurisprudence has also expressed itself on this point, at the moment, given the novelty of the issue, only at first instance, with numerous rulings. For the most part, these are judgments concerning leases<\/strong>, which have ruled that the defaulting tenant who intends to oppose an eviction for delinquency on the ground that it has been unable to pay the rent regularly as a result of compliance with the rules for the containment of the pandemic, has the burden of providing circumstantial evidence of the aetiological connection between the cause of the impossibility and the default. Indeed, compliance with the containment rules constitutes only an abstract cause of force majeure, the impact of which in the particular case must be proven by the tenant. However, the instrument of termination, producing ex tunc an effect of termination of the contractual obligations, does not always appear to be the most appropriate means of protecting the parties’ interests.<\/p>\n

An alternative to termination is the obligation to renegotiate<\/strong>, even if not expressly provided for in the Italian Civil Code. Among the provisions of the Italian Civil Code that refer to the renegotiation of the contract is Article 1467 of the Italian Civil Code, already cited, which in contracts with continuous or deferred performance allows for the occurrence of “extraordinary and unforeseeable events” to offer the affected party, following the rebus sic stantibus principle and the principles of good faith, the alternative between termination and the restoration of the contractual terms and conditions to equity.<\/p>\n

Also in this case, several judgments on the merits have been pronounced. Among others, particularly relevant is the Court of Rome, Section VI, Ordinance, 27 August 2020, according to which the economic crisis caused by the pandemic and the forced interruption of business activities must be qualified as a contingency in the factual and legal substratum that constitutes the assumption of the negotiated agreement. More precisely, even in the absence of renegotiation clauses, long-term contracts, in the application of the rebus sic stantibus principle, must continue to be respected and applied by the contracting parties as long as the conditions and assumptions they took into account at the time of the creation of the agreement remain intact.<\/p>\n

On the contrary, in the event of a contingency in the factual and legal substratum that constitutes a prerequisite of a negotiated agreement, such as the one brought about by the pandemic, the party that would experience a disadvantage resulting from the prolongation of the execution of the contract under the same conditions agreed upon initially must be able to renegotiate it, based on the general duty of good faith in the execution phase of the contract.<\/p>\n","protected":false},"excerpt":{"rendered":"

The new edition of the Litigation & Arbitration service line newsletter is dedicated to extraordinary change in economic relations, with a special focus on Belgium, Germany, Hungary, Italy, Macedonia, Malta, Poland, Romania, Slovenia, Spain and Switzerland situations. In this publication, we address two constructs that will be the most common basis for legal claims: the […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[50],"tags":[],"_links":{"self":[{"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/posts\/20467"}],"collection":[{"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/comments?post=20467"}],"version-history":[{"count":14,"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/posts\/20467\/revisions"}],"predecessor-version":[{"id":31238,"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/posts\/20467\/revisions\/31238"}],"wp:attachment":[{"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/media?parent=20467"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/categories?post=20467"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/it.andersen.com\/en\/wp-json\/wp\/v2\/tags?post=20467"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}