March 17, 2020

In the face of unforeseen circumstances of force majeure such as this alarm, the resolution of the contracts of deferred execution can be urged, and each party restitute the benefits.

Families affected by the alarm decree certainly had immediate plans that have been frustrated. Given the proximity of Easter, or the time of communions, weddings, etc ... many will have anticipated money and even paid fees, in theory, "non-refundable".

However, in this article we analyze the figure of the application of the legal principle with little tradition in our legal system, called "rebus sic stantibus" (translatable as "things being so ...") by which it is understood that the covenants contained in the contracts must take into account the concurrent circumstances at the time of conclusion and therefore an alteration of such circumstances may lead to the termination of the contracts.

Applied this to the situation in which a family has advanced money for a reservation of an act that will not be able to be done because it is prohibited, or has booked a trip that it will not be able to do, leads us to the conclusion that notified such circumstance, can demand the resolution of the contract and the money must be returned.

For this, ALL the following circumstances must be met:

1.- That the execution of the contract has been deferred over time.

2.- That there is an unforeseen circumstance not foreseen in the contract.

3.- That such circumstance is unpredictable.

4.- That is not attributable to any of the parties.

5.- That the contract has not been concluded on something subject to chance or risk.

6.- That the equivalence between the benefits of the one who pays and the one who must perform the service is broken.

We understand that in the case of a trip already paid that cannot be made for a reason that is not foreseeable to the parties, upon its cancellation both parties must return the benefits (the money for which they pay and the liberalization of the obligation of the person who had to carry it out). The same case is found before a reservation for a celebration in a restaurant that would have required a signal or reservation already satisfied, when it turns out that the event cannot be held.

Otherwise, in the event of a refusal to return the money, you must start by placing a claim (remember that the claim book is mandatory) and if the attitude persists, contact a lawyer to make the corresponding claim.

We recall that these days, and as long as the alarm persists, Ley 57 Abogados / Jiménez y Asociados maintain a remote service through the telephone (951 77 52 53, in Marbella-San Pedro 952 82 00 73), WhatsApp (663 92 91 47), or email (info@ley57.com).