In an unprecedented global crisis, the execution of contractual obligations has become very difficult, if not impossible, for many economic actors, who are therefore tempted to find a way around them. Cases of force majeure may be subject to contractual obligations, but such a solution should be used with great caution given the strict requirements associated with the agony of force majeure and the complexity of its assessment. It may also be considered to request a review of the contract due to an unforeseen change in circumstances, provided that this option is met and its conditions are met. However, the effect of such an option is not the same as the force majeure case, since the contract is not suspended during the renegotiation. Finally, if an essential adverse amendment clause has been introduced in the contract, it may be invoked by the party wishing to be released from its obligations, provided that its drafting permits it. Unless the contractual provisions are made otherwise, the revisions are calculated by the owner, the contractor being able to submit his own calculations on his own part. If the agreement does not contain a formula for price revision, the formula used for works of the same nature or closest to the scope of the commission work applies. Such a request for review could apply if the Covid-19 outbreak represents a change in circumstances that were unpredictable at the time of the contract (a) and if the effect of the amendment was to make the performance of the contract excessively cumbersome for a party (b). This is why we recommend caution in implementing these provisions, as they can have significant consequences (for example. B, triggering a MAC clause in a loan agreement may result in the borrower`s insolvency). In some cases, bidders may also propose an adaptation of the price change formula, provided it is justified. First, the law applicable to the treaty must be determined.
The analysis of force majeure, a material adverse change or unforeseen circumstances justifying a review of the contract differs from country to country. If the delay is due to the contractor, the economic indicators to be considered for price revision are those corresponding to the period during which the work should have been completed. Italian doctrine says that it is a duty of the party that asks for adaptation to make a fair proposal, and this cannot be left to the court. The court only rules on the fairness of the offer in the absence of an agreement.56 This is at least a half-legal obligation based on the assumption that the collapse of the creation of the transaction results in an adjustment as an automatic consequence.57 The right to demand a price review ends with the delivery of the contractual account or, alternatively, upon the final adoption of the works. , with the exception: “If an unforeseen change in the circumstances at the time of the contract makes the performance of the contract excessively cumbersome for a party who has not accepted the risk of such an amendment, that party may ask the other contracting party to renegotiate the contract. The applicant must continue to fulfil its obligations during the renegotiation. If the renegotiation is refused or failed, the parties may agree to terminate the contract on a date and conditions they may set or, in a state of agreement, ask a judge to adapt the contract. In the absence of an agreement within a reasonable time, the judge may, at the request of a party, review or revoke the contract at a time and on terms that he will determine.”