While preparing this post and trying to comprehend the scale of the sanitary and subsequent economic dimension of the impact the COVID-19 will have on the world, I have realised that it is time to have a new perspective towards it.
From my personal point of view, it is clear that modern humanity hasn’t experienced anything like this before. Its consequences will create a new world, and with it, a new legal landscape.
Comparing this to the world wars we have suffered, and to the Great Depression or any of the economic downturns from recent history is insufficient as the globalised extent of the current situation has taken almost 3 billion people around the world to a sudden stop of its activities due to the complete lockdown imposed by governments, causing damages that no one is immune to its effects.
I wonder how much jurisprudence can the Supreme Courts around the world have been established on the effects on the fulfilment of contracts referring to a crisis of this level?
The force majeure clauses in contracts have been redefined by such event that is still ongoing as this is written without any certainty of its length or duration, and has legal scholars reviewing doctrine to find solutions.
At the same time legal professionals are all over the place studying and trying to make some sense of the constant and nonstop inflow of new measures and regulations approved by lawmakers (that are also at a learning by doing mode), creating a generalised discontentment.
In the current context, as lawyers are faced with pressing questions from our clients:
- What do we do with contracts that bind us with third parties?
- Do I pay the rent or mortgage for my apartment taking into account that I am affected by a temporary layoff?
- What will happen to the financing of my company?
- Investment on hold?
- Will the taxes due be suspended?
- How do I pay my employees salaries if there are no sales?
The incoming questions have all varieties of colors and are growing at an exponential scale as time goes by.
Again, the conflict is between essential principles of private law being much radically apart: does pacta sunt servanda (“agreements must be kept”) apply or instead we opt for rebus sic stantibus (agreements become inapplicable because of a fundamental change of circumstances)?
What this means is that as we speak due to these exceptional circumstances some clients are considering to simply not paying the monthly rent of their locals or houses to their landlords, or being condoned their debts due to their creditors, or simply cancelling previously agreed orders to their providers without any compensation. On the other hand, we have clients that are considering these demands sufficient for a breach of contract and wish to start a litigation procedure.
The path to litigation is served and consequently bankruptcy for many companies and individuals will follow created by the impossibility of fulfilling their obligations if there is no real and mutual help between one another, especially that from the legal professionals and enforcement agents, making it now more than ever the time for a new law vision.
Lawyers that act as support and settle in agreements, avoiding the religious execution of contracts. Lets not sit waiting for a hand from public administrations that will only come through more measures and regulations, and lets all behave more as human beings, keeping everyone’s best interest at heart through compassionate actions.
Unfortunately if we are only looking after our own well being either as companies or as individuals, everyone will get involved in lawsuits all against all, at some deadly effects for the society and the consequent economic collapse, which will add an irreparable social fracture for future generations to come.
It is in our hands to embody in the first person the social function of the legal profession, (applicable not only for registered lawyers, but to society as a whole).
At these crucial moments, lawyers must not only advise and defend the interests of clients to the final extent, but, above all, advise them in obtaining agreed upon fair and equitable solutions for all parties.
The art of rebalancing the interests of the parties involved in any conflict, issue between parties and even families affairs, will require much craftsmanship from a good lawyer to restore the sustainability in the system, whilst creating a new one, more fair, more human.
We must use the lockdown and social distancing (and any spare time we have in our hands) as an opportunity for a real thinking-time for times ahead after COVID-19, and reconsider in what world we really want to live.
As a result of the pandemic, let’s advocate adapting the unavoidable effects, for the common benefit in defense of the social and public interest not only those of our clients.
If, like medical professionals, who are working tirelessly to save millions of lives, we think of the consequences of our actions in the long term, everyone is on the spotlight, not only lawyers or lawmakers, and through compassion and the correct use of the means at our disposal we may also save lives in the future by crafting all together a new system, and with it create a new law vision.