Case 1.
Mr Jan has been placed in quarantine, meaning he cannot complete a contract he has already started on time. The client claims he is withdrawing from the contract and demands a refund due to the delay. What can Mr Jan do?
The coronavirus pandemic and the associated obligation to undergo quarantine may be treated as force majeure, i.e. an external event that was impossible
to foresee and whose consequences could not be prevented.
By invoking force majeure, Mr Jan will avoid the negative consequences of failing to fulfil his obligation on time. In the event of force majeure, the contract remains in force, but the party that has failed to perform the contract due to such circumstances is not obliged to pay compensation or a contractual penalty to the other party.
Of course, this does not mean that all businesses can justify their failure to fulfil their obligations by invoking force majeure. Force majeure may be invoked to justify non-performance or improper performance of an obligation only where the coronavirus has had a real and objective impact on the ability to fulfil obligations, i.e. in such a way that, despite exercising due diligence, the contract cannot be properly performed. Importantly, the indirect impact of the epidemic (e.g. a disruption to the supply chain resulting from an outbreak in another country) may also be considered force majeure.
Case 2.
Mr Andrzej (the client) claims that his cobbled driveway was stained with oil during the paving work. He is making a complaint about the paving service, but there is no evidence as to when the defect might have occurred. Mr Maciej (the paver) is convinced that he did nothing that could have caused the damage. How can he defend himself?
The issue of liability arising from a contract (contractual liability) is regulated by Article 471 of the Act of 23 April 1964 – Civil Code
(Journal of Laws 2020, item 1740, as amended), according to which the debtor is obliged to make good the damage resulting from non-performance or improper performance of an obligation, unless such non-performance or improper performance is the consequence of circumstances for which the debtor is not liable.
Consequently, it is not Mr Andrzej (as the investor claiming compensation for damage resulting from the improper performance of an obligation) who will have to prove the contractor’s fault, but our Mr Maciej (as the paver), in order to be released from liability, will have to prove that the improper performance of the obligation was the result of circumstances for which he is not responsible.
Therefore, if Mr Maciej is virtually certain that he did not soil the paving, he will have to prove that he did everything in his power to perform the task entrusted to him to the best of his ability (i.e. exercising due care).
Case 3.
Mr Adam, a paver, undertook to make corrections following a customer’s complaint. However, he carried them out after the deadline specified by the client. Can the client demand a reduction in the cost of the service?
The possibility of a reduction in the cost of the service arises only when the contractor acknowledges that they are unable to carry out the repairs within the timeframe specified by the client. Furthermore, if it is not possible to rectify the defects, their proportion of the entire service must be estimated and a proportional discount determined.
If, however, Mr Adam undertook to rectify the reported defects but carried out the repair after the specified deadline, then the investor has the right not to accept the repair and to refuse to pay the contractor for the service.
However, the legal regulations do not leave the contractor completely defenceless.
In a situation where the repairs required by the client are too costly, the contractor may refuse to carry out the repairs and withdraw from the contract. The client may claim compensation if they have suffered actual loss as a result of the service not being performed.
