Last March 14, Royal Decree 463/2020 was published in the BOE, declaring the state of alarm for the management of the health crisis situation caused by COVID-19, in principle for 15 calendar days and being its extension is foreseen for 15 more calendar days.
Among the measures envisaged in this situation of state of alarm, is the suspension of the procedural and administrative deadlines, in general and the suspension of the statute of limitations and expiration of any actions and rights while the state of alarm lasts. Likewise, some particular situations have been regulated, and will certainly develop, such as in the case of the suspension of payment of mortgage loans on homes for people in special situations of vulnerability.
This does not mean, however, that it is possible to extend these measures, especially planned and regulated, to the terms or the obligations derived from the current contracts.
In this sense, the state of alarm is an exceptional norm, applicable only to expressly foreseen cases (or to those expressly regulated hereinafter) and cannot be applied by analogy to other situations not expressly foreseen.
It must therefore be assumed that the general principle of contract compliance continues to apply. ("Pacta sunt servanda"). Now, even though this is true, it is also true that we are in an exceptional situation, and that the principle of compliance with what has been agreed also has limitations, the main ones being:
1ª.- Assumptions of concurrence of "fortuitous case" and "force majeure". The Supreme Court has established that, for these assumptions to occur, totally unforeseeable or unavoidable circumstances must occur at the time of contracting and that by themselves prevent the provision. It should always be based on a restrictive interpretation of such assumptions. The TS also says that this exception is based on good faith in the contractual field, which is enshrined in articles 7 and 1258 of the Civil Code.
2ª.- The clause "rebus sic stantibus". This clause, implicit in all contracts, implies that a totally unforeseeable change in the circumstances foreseen at the time of contracting (the basis of the contract), can lead to the modification or termination of the obligations. In this case, the jurisprudence requires the same requirements as for force majeure (unpredictability and causality).
Although we understand that the current situation can undoubtedly be classified as an absolutely unforeseeable event, This would not be sufficient for the automatic application of the fortuitous case, force majeure or the “rebus sic stantibus” clause., which will have to be analyzed or applied to each specific case.
As general lines to consider:
1º.- We will have to attend to what specially planned in the law or in the contract that regulates the particular situation.
2º.- You have to direct causality between this totally unpredictable circumstance and non-compliance. As stated in STS 413/2016 "To appreciate the impossibility of compliance that frees the debtor, the jurisprudence requires that he observe due diligence doing everything possible to overcome the impossibility. ”
The burden of proof of a situation of fortuitous event or force majeure (unforeseeable or inevitable event that makes it impossible to fulfill the obligation) corresponds to those who oppose it as a cause of exoneration of liability.
In this way, it becomes vital to document and legally communicate the failed efforts to comply with the specific benefits of the contracts due to the drastic measures adopted by the Government or derived from the current situation to control the pandemic.
3º.- The intended effects must be, in any case, proportional. As stated in STS 447/2017, what is at issue is to “relax” the rule “pacta sunt servanda”, Not necessarily to extinguish the legal relationships or to give a letter of nature to the breach of the same.
In this sense, the most prudent option, after an adequate legal study of the specific case, will always be the modification of the contract to rebalance the obligations (obtaining, for example, the right to an extension of the deadlines for compliance or a reduction in the due monetary benefits), and only in case of manifest impossibility, the resolution of the obligation or justified non-compliance, without compensation derived from that total or partial non-compliance.
