This article comes from WeChat public account: Jindu Researcher (ID: KWM_China) , the original title, “” landlord, you can rent free? “- Talking about the performance of the contract at issue new crown pneumonia epidemic”, author: Wu Peng, Zhang will be, Lu Jiawei

Early 2020, a new type of coronavirus pneumonia (hereinafter referred to as “new coronal pneumonia”) The epidemic situation has erupted, and epidemic prevention and control measures have continued to escalate. The performance of related contracts in hotels, restaurants, accommodation, retail, and tourism has been affected to varying degrees. In this case, in order to cope with the difficult times, many shopping malls across the country have announced rent reductions.

Thus, we would like to explore, without prior agreement or after-the-fact consensus , can the lessee ask the lessor to reduce the rent during the immunization period, and then extend it to the performance of other contracts? problem.

Is the lessee able to ask the lessor to reduce or exempt the rent?

The lessee’s request for rent reduction during the immunization period is essentially based on the objective situation of the new crown pneumonia epidemic, requiring the contract to be changed in terms of rent payment, or to be exempted from part of the rent payment liability.

The probable legal basis for the former claim is the “Interpretation of the Supreme People’s Court on Several Issues concerning the Application of the” Contract Law of the People’s Republic of China “(II)” on the situation change system, that is, “the objective situation occurred after the contract was established If the parties are unable to foresee the signing of the contract and are caused by force majeure and are not a major risk that is not a commercial risk, and the continued performance of the contract is obviously unfair to one of the parties or the contract purpose cannot be achieved, and the party requests the people’s court to change or terminate the contract, the people’s court shall The principle of fairness, combined with the actual situation of the case to determine whether to change or dismiss “” (hereinafter referred to as the “change of situation system”) .

The possible legal basis for the latter claim is the provisions of the Contract Law on force majeure, that is: “If the contract cannot be performed due to force majeure, according to the influence of force majeure, the liability shall be partially or wholly exempted, unless otherwise provided by law. In the event of a force majeure occurring after the party’s delay in performance, the liability cannot be waived. “Force majeure” in this Law refers to an objective situation that cannot be foreseen, unavoidable and insurmountable ” “Force Majeure System”) .

We believe that the two systems mentioned above are unforeseeable and unavoidable situations that affect the performance of the contract after the conclusion of the contract. The main difference is that the result of a change of situation is obviously unfair to a party or the contract cannot be realized. The purpose is that although it can be performed, continued performance will result in unfairness, so the two parties to the contract should share the corresponding risks; as a result of force majeure, the contract cannot be performed, and there is no responsibility for failure to perform the contract based on this.

So, can the lessee invoke one of the two systems to achieve rent reduction or exemption during the epidemic? We believe that the sudden emergence of the new coronary pneumonia is in conformity with “unforeseeable” and “unavoidable” in form, but there are differences in the impact on contract performance, so we cannot consider it as a one-size-fits-all situation or force majeure system. Notice of the Supreme People’s Court on Doing Well the Trial and Enforcement of the People’s Court in the Period of Preventing Infectious Atypical Pneumonia (Law [2003] No. 72, Expires on April 8, 2013) Different treatments according to the degree of influence (The Supreme Court may then have effective regulations on the standards for handling contract disputes caused by the new crown pneumonia epidemic, Whichever is the case) . Specifically:

1. If the government and related departments take administrative measures such as prohibition of business to prevent the epidemic situation, the contract cannot be performed directly, the lessee can claim that the epidemic situation is force majeure, and require the application of a force majeure legal exemption system.

2. If the epidemic situation causes the tenant’s possession and use of the leased property to bring about a serious decline in the power, power, and benefits, and the continued performance of the contract will be obviously unfair to the lessee, then the lessee can claim that the epidemic situation constitutes anIf the situation changes, the court is requested to reduce the rent during the immunization period based on the principle of fairness.

In addition, we noticed that in order to maintain social stability during the atypical pneumonia epidemic in 2003, some government departments also issued regulations on rent reduction and exemption during the epidemic. “If the business, service industry, catering industry, entertainment venues, etc. are affected by the SARS epidemic and have difficulty operating, the rent will be reduced or exempted by 30%.” Under the new crown pneumonia epidemic, government departments may also issue corresponding regulations on rent reduction and exemption, which can continue to pay attention.

Second, the impact of the new crown pneumonia epidemic on the performance of other contracts

Through a search of cases related to the SARS epidemic in 2003, we judge that in addition to lease contracts, the performance of the following types of contracts are likely to be affected by the new crown pneumonia epidemic:

1. Contracting business contract. For example, with regard to the contracted operating contracts of shops, hotels, aircrafts, ships, etc., due to epidemic prevention and control measures, business suspension or cliff-type declines in passenger traffic caused disputes such as reduction of contract fees and termination of contracts.

2. Contract of sale. For example, due to related temporary regulations prohibiting transactions or workers being quarantined, the factory changed production, etc., the target of the sale and purchase contract could not be delivered according to the contract, which led to disputes such as contract termination and liability for breach of contract.

3. Contracts for providing labor services and services. For example, according to the unified requirements of the Ministry of Culture and Tourism of the tourism contract, the domestic tourism team business and machine-to-drink service have ceased since January 24. Another example is the labor contract that provides translation services, where the translator is quarantined or rejected due to the epidemic Performance, resulting in disputes such as termination of contract and liability for breach of contract.

4. Engineering construction and processing contract. For example, the construction project construction contract, the suspension due to epidemic prevention and control, delayed delivery and other issues.

5. Other contractual debt disputes.

With regard to the disputes over the execution of various contracts and the main points of the adjudication of the SARS epidemic, we have selected some cases and compiled the following table for readers’ reference.

Three, our suggestions

We did not write this article to encourage contracting parties to abuse the change of situation system or force majeure system to affect the normal order of the market, but to provide contract parties with a bit of legal ideas to overcome the difficulties caused by the new crown pneumonia epidemic that caused major losses and difficulty in performing .

In fact, in judicial practice, both the application of force majeure system and situation change system are very cautious. Therefore, if you are having difficulty or unable to fulfill your contract due to the new coronary pneumonia epidemic, we recommend that you first try to resolve the issue through equal negotiation , and also reserve to keep the contract from performing due to the epidemic Or evidence that it has a material impact on the performance of the contract (such as blockades of traffic, restrictions on the trading of goods, suspension of administrative measures announcements, CCPIT Commercial Certification Center Proof of facts related to force majeure, etc.) and take effective measures to reduce losses in a timely manner in order to respond to lawsuits or arbitration procedures that must be done later.

Facing the sudden epidemic of new crown pneumonia, our country is fighting against it with national strength. I hope that everyone can resolve conflicts and disputes peacefully and amicably in the principles of mutual understanding, mutual trust, honesty, and fairness, and work together to overcome the difficulties!


This article comes from WeChat public number: Gold Researcher Du (ID: KWM_China) , the original title is “Landlord, can I rent for free? “- contract implementation issues under the New crown pneumonia epidemic”, author: Wu Peng, Zhang will be, Lu Jiawei