Clause rebus sic stantibus and “long-term” contracts: regarding the confusion generated by the STS, First Chamber, 156/2020 of March 6 –

These days the concept has unfold that the clause issues standing It could solely be relevant with respect to “long-term” contracts, with out figuring out precisely what this implies. This concept, which gained power primarily on account of the STS, First Room, 156/2020 of March 6 (RJ 2020 879), continues to be repeatedly repeated in the present day in all types of boards, resolutions and procedural paperwork.

Nonetheless, a cautious studying of the aforementioned Judgment is adequate to conclude that In no case has the Supreme Courtroom established that, among the many necessities for the appliance of the clause affairs, it’s discovered that the contract should be of “lengthy length”. Amongst different causes, as a result of it might make no sense to have completed so with out first defining what’s to be understood as an extended or short-term contract.

That is particularly what the Judgment says (Fourth Legislation Basis):

The change in these traits that, below the premises established by jurisprudence, might generate an assumption of utility of the rebus sic stantibus rule, is extra more likely to happen in a long-term contract, ordinarily of a successive tract. However not in a case, similar to the current, of a short-term contract, wherein one thing extraordinary can hardly occur that impacts the premise of the contract and isn’t lined throughout the danger of that contract.

No matter how roughly lucky the wording could also be, the reality is that, if we stick with the literality of the Judgment, the Supreme Courtroom limits itself to saying one thing that’s apparent and we totally share: that in a long-term contract, a unprecedented alteration of circumstances is extra probably liable to provide rise to the appliance of the clause issues stanbitus.

However along with the literality of the Judgment, I feel it is rather necessary to have in mind the case of truth prosecuted – which is described within the subsequent paragraph – as a result of it may give us some clues as to the rationale for the ruling. And it’s that the case referred to an promoting administration contract whose preliminary length was two years (2006 and 2007), and that by determination of the successful firm, it had been prolonged for another yr (2008), which is exactly when the demand for contractual modification was filed.

On this particular case, the Supreme Courtroom understands that throughout the framework of a one-year contract, it might be troublesome for a unprecedented alteration of the circumstances that have been taken under consideration by the events on the time of contracting. But in addition, I don’t consider that the length of the contract was on this case the defining factor of the ratio decidendi. On this sense, the Judgment additional states:

When ZGM [la demandante], freely, assumes the extension of the promoting administration contract is aware of that, regardless of what’s lastly agreed on the assured minimal, this is able to be no less than the earlier yr. It assumed, or needed to assume, the extension with this situation, which entailed the chance of not with the ability to obtain and bill that minimal of promoting, and having to compensate TVG for it. The drop in demand for TV promoting, referring to a brief time frame, one yr, was nonetheless a danger lined by the contract, along with not being one thing so drastic and unpredictable: the lower in promoting funding generally it was from 25.9 million euros in 2007 to 24.1 million euros in 2008.

As might be seen, the traits of the precise case have been very explicit and on no account justified the appliance of the clause issues standing. However what’s decisive for the Supreme Courtroom is just not that the length of the contract was prolonged for one, two or three years, however slightly that the contractual distribution of dangers didn’t enable within the particular case to talk of a unprecedented alteration of the circumstances.

In any case, there is no such thing as a doubt that this ruling launched a brand new debate in rebus lawsuits, by distinguishing between lengthy and short-term contracts. This debate, along with producing confusion, is pointless, as ORDUÑA MORENO has rightly identified (“Clause Rebus. STS 156/2020 of March 6. Distinction between lengthy and short-term contracts. A classification missing rank or applicative categorization : inappropriate and out of social context ”; Revista de Derecho vLex. – Nbr. 191, April 2020).

The aforementioned creator –till not too long ago a Justice of the Peace of the First Chamber– factors out that the excellence between lengthy and brief length could also be attention-grabbing merely for instance, for the reason that longer the length of a contract, the simpler it might be for the change to happen. circumstances alter the financial foundation of the identical and the extreme price for one of many events. However The right factor to do, each from a doctrinal and a sensible standpoint, is to resort to the traditional distinction between successive tract and single tract contracts. Having the ability to distinguish in flip, throughout the latter, between contracts of simultaneous execution and people of deferred or deferred execution.

It mustn’t even be forgotten that the case prosecuted by STS 156/2020, of March 6, falls throughout the scope of the generally known as “abnormal enterprise danger”, That’s to say, the one which any employer can –and should– foresee when hiring. And it’s exactly for that reason that the Chamber affirms that the drop in demand for promoting within the non permanent house of 1 yr was a danger assumed by the winner of the promoting administration contract. By cons, the pandemic and its devastating financial results, on no account might be understood to be included within the class of abnormal enterprise dangers. And exactly due to the latter, it’s troublesome to extract from the stated Judgment any legitimate conclusion relating to the lawsuits which might be at present being aired, primarily derived from the emergence of Covid-19.

This distinction is being mirrored within the newest judicial choices issued on this matter. For instance, within the current SJPI nº four of Gandía, no. 112/21 of Might 1, 2021 -With regard to a lease contract wherein mounted and variable revenue had been agreed, primarily based on sales-, or very illustratively within the Valencia AAP (Part 8) no. 43/2021 of 10 February (JUR 2021 44489), issued on the headquarters of precautionary measures, which differentiates between the “conditions derived from the financial state of affairs or market fluctuations […] throughout the scope of the “regular” dangers of the contract“, in distinction with “a circumstance as distinctive, unpredictable and terribly severe (catastrophic we might add) and with such dangerous results because the one which has taken place on account of the COVID-19 pandemic”.

And naturally, it’s price mentioning right here the primary sentence printed in Spain, on this matter, on account of the pandemic, the SJPI no. 20 of Barcelona 1/2020, of January 8 (JUR 2021 9677), wherein the contractual modification is exactly agreed, by utility of the clause issues standing, even when the lease resulted in March 2021, that’s, only one yr after the primary state of alarm was decreed.

For my part, this ought to be the pattern to any extent further. And though it may very well be erroneously interpreted that the reference to lengthy length would have instituted a brand new requirement for the appliance of this determine, the reality is that we’d not be going through a figuring out or decisive query both, to the extent that STS 156/2020, of March 6 doesn’t represent jurisprudential doctrine (artwork. 1.6 CC), and subsequently, it should not bind judges and courts.

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