Civil law and the pandemic. Contract rights and contractual adjustment mechanisms

COVID-19 brought with it the global pandemic that we have been experiencing since the end of 2019. This pandemic has been classified as a fortuitous, an extraordinary and unpredictable event, which is already in its second wave. As a result of the contagions, the governments issued a series of rules of isolation, commercial brake and then economic reactivation. However, many economic sectors have been seriously affected to date. How, from the law, can we address this serious problem? What happens when the debtors cannot execute the considerations in favor of their creditors? What happens when the original circumstances in which a contract has been entered into are now completely different and make complying with the provision under these conditions excessively burdensome and damaging to the debtor? Should contracts be enforced under the criteria of the pacta sunt servanda brocardo or will we have to adapt the situations to the exogenous variations that have occurred in the execution of the contracts, recalling the rebuc sic stantibus brocardo? Can the creditor require his debtor to comply strictly with the agreement or can the law intervene in private contractual relationships and establish or reconstitute the situation according to criteria of equity?

We consider it important to have a comparative vision of the institution of the excessive onerousness of the provision, which addresses the reading and study of the main European codes and the common law system, as well as the harmonization and community projects of continental law. This is not only with the intention of better understanding the figure by studying its origins and evolution, but also by evaluating which regulations or harmonization projects can best be adapted to the Peruvian reality.