En tiempos de la COVID-19: pacta sunt servanda, rebus sic stantibus y validez de las cláusulas obligacionales que trasladan a la contraparte los riesgos asociados a la imposibilidad del cumplimiento por una alteración de las circunstancias negociadas prev

Abstract

Costa Rica has enshrined the pacta sunt servanda principle, known as the rule of the binding effect of contracts. This means that the obligations arising from the contracts have the force of law between the contracting parties. This is extracted from various rules of the Civil Code, especially articles 1022 and 1023. They are rigid rules because except for the nullity of the contract due to some defect in its essential elements, or due to force majeure or unforeseeable circumstances, contracts must be executed and before the breach as a cause of supervening ineffectiveness, the compliant has the right to demand the forced fulfillment of the obligation or the resolution of the contract with a sentence in damages, as it is stablished in the Civil Code, art. 692. There are laws where are expressly contractual remedies that justify, in the face of specific exceptional circumstances, the partial or total breach of the obligations arising from the legal business. In this way the pacta sunt servanda is not applied literally. Precisely, the most unique scenario is the well-known rebus sic stantibus clause, which is applied when after the conclusion of a contract, events considered extraordinary and unpredictable occur, such as COVID-19, where contractual obligations become excessively burdensome for one
of the parties. In this scenario, it is worth asking: Is there a remedy in the national civil law to face the temporary impossibility of fulfilling contractual obligations during extraordinary situations such as a pandemic?