On the need for codification in European contract law : adaption or termination of contractual obligations in times of pandemic

Abstract

The sanctity of contracts, a guiding principle of contract law in civil law systems, requires that both or all contracting parties be expected to meet their contractual obligations, thereby ensuring efficacy and efficiency of private ordering. Under extraordinary circumstances, however, legal systems provide for mechanisms, which may excuse contractual performance or lead to adaption or termination of contractual obligations. Since the coronavirus pandemic, these mechanisms have clearly gained traction. Drawing on five important civil law jurisdictions (Germany, Austria, Switzerland, France, Italy), this article elaborates on adaption or termination of contractual obligations. The article aims to address the fundamental question, whether institutions on adaption or termination still serve their purpose in times of pandemic or whether and to what extent a codification of such institutions is needed in European Contract Law. A functional and comparative approach is used to unfold and analyse this timeless question from a contemporary perspective.