Pédamon, C; Vassileva, R; (2021) Contractual Performance in COVID-19 Times: Does Anglo-French Legal History Repeat Itself? European Review of Private Law , 29 (1) pp. 3-38.

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Abstract

The Severe Respiratory Syndrome Coronavirus 2 (COVID-19) pandemic has dealt a universal challenge to contractual performance, but legal systems have responded differently. In this article, we focus on two jurisdictions with distinct paths of development – England and France – to examine if they have drawn from their own legal history to craft solutions to this challenge and to consider if either has bettersuited tools to address it. Notably, the UK has refrained from intervening in the area of contract law, thus relying on long-standing common law doctrines and equitable remedies, while, in France, the government has intervened with a series of ordonnances providing contracting parties with new tools tackling difficulties of performance, which add to the existing arsenal in the Code civil. The article demonstrates that the responses to the COVID-19 challenge by England and France have historic roots and illustrate important legal cultural differences vis-à vis state intervention in the area of contract in trying times. Moreover, even though, at first glance, parties contracting under French law have more tools balancing freedom of contract and fairness, a closer look reveals that over protection or under protection may lead to the same outcome for contractual relationships on both sides of the Channel. Ultimately, in both countries, parties seem better off settling their disputes themselves, away from the courts.

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