سلطة القاضي في تعديل آثار العقد في ظل الظروف الطارئة في القانون الكويتي : فيروس Covid-19 أنموذجا

الملخص EN

The legislator of the civil law assumes the contract be the law of the parties.

Therefore, all parties must perform their obligations accordingly.

One party can’t rescind or modify the contract without the consent of the counter-party.

However, there is an exception to this principle which the judge may modify terms and, further, rescind the contract on a request from one party to contract.

The judge can only practice this power when applying the impossibility and farce majeure.

The wisdom behind that is to protect the justice and the innocent side of the transaction, when an exceptional circumstance occur and render the contract difficult to be performed.

The modification based on this theory can be done by the judge as authorized by the law to rebalance the obligation in a way consistent with justice.

This paper reveals that Covid-19 can’t constitute the base of the exceptional circumstance allegation.

However, the impacts that are resulted from it might suffice to be a valid base as we will see in this paper.

We thought it would be beneficial to draw the distinction between the pandemic and the factors that affected the contractual duties.

Also, It is crucial to clarify the Kuwaiti law position in this matter