By Rubesh Doomun, Barrister at Law Mauritius and Centurion Plus lawyer
As Mauritius lifts its sanitary curfew, new questions undoubtedly emerge. Humans we are, and it is in our nature to question our obligations. Be it in lease agreement, employment contract, delivery of goods or the performance of services, the new normality imposed by Covid-19 now raises this question: what happens to our pre-existing obligations and can Covid-19 be classified as a force majeure under Mauritian Law?
Obligations come in two disguises: contractual obligations and tortious/delictual obligations. Both are catered for in the Mauritian Civil Code (MCC), which is the guiding light for lawyers involved in the day-to-day litigation.
Is Mauritius new to this phenomenon?
Covid-19 might have been unprecedented and took the system off-guard. However, Mauritius did face a period of bleak uncertainty in the past. Being a tropical island, cyclones are very often the unannounced and unwelcome guests. Naturally, they come with rain, high-intensity gusts of wind but also bring along suspension of contracts, forcing the parties to abandon their obligations midway through their execution.
Under article 1147 of the MCC, the old-age principle is that a contracting party is liable to damages unless he can show that his default was due to an event beyond his control. This provision, which has been consistently applied over the years, is subject to one exception which is provided by article 1148 of the MCC. The latter article provides for an exoneration of liability of the contracting party where the latter has been unable to perform his part of the bargain as a result of a force majeure.
For those of you witty readers who happen to ask yourselves about tortious liability, let me wipe any particles of doubt by saying that the MCC has provided an equivalent provision for the exoneration of tortious liability under article 1384 . Therefore, the concept of force majeure is the same under either contractual or tortious liability.
The concept of force majeure is of French making. Our own case law has applied that principle importing it from French law. In the early sixties, the test of trilogy surfaced in French jurisprudence. In essence, for the principle of force majeure to be raised, there were 3 constitutive elements which had to be proved: the event had to be (1) unforeseeable; (2) irresistible; and (3) external.
Can we classify Covid-19 as force majeure?
As at the time of writing this article, the attention is drawn to the disturbing statistics provided by Worldometer with 7,004,375 cases of Covid-19, and 402,660 as the death toll. Mauritius was obviously not spared. In that time of exponential change, the question was what happens to legal obligations. Precautions are to be taken ahead of any calamity. That ageless principle applies equally to the business world. However, with the sudden advent of the lockdown and curfew, many contracts lay suspended and the obligations were put off. Therefore, in order to deconstruct whether Covid-19 would qualify as an event of force majeure and consequently exempt parties of their obligations, it is important to analyse the 3 conditions.
As far as Mauritius is concerned, doubt remains as to whether this event could be categorised as a force majeure. Considering that it was not an unexpected event since many similar viruses have been detected before Covid-19. For instance, in 2003, the severe acute respiratory syndrome coronavirus (SARS-CoV) also known as SARS had caused an outbreak in the mainland of China and Hong Kong. Similarly, in 2012, the Middle-East respiratory syndrome coronavirus (MERS-CoV) also known as MERS led an outbreak in Middle-East countries like Saudi Arabia and the United Arab Emirates among other countries.
In Mauritius, some businesses have been able to take precautionary measures to honour their contract by working remotely from home and provide their employees with a Work Access Permit (WAP) to enable them to commute.
French author Boris Starck beautifully stresses that the sovereignty of force majeure should be reserved for unpredicted cataclysmic events. How large-scale and violent was the Covid-19 to Mauritius will eventually be a matter for the Mauritian courts to assess based on the circumstances presented to it on a case-by-case basis. In this ever-changing world dominated by industrialisation, natural phenomena are taking forms of unprecedented dimensions. But the speed with which this pandemic hit the world is no secret to anyone.
What are the considerations that the Mauritian courts are likely to bear in mind when determining the liability of parties under pre-existing obligations?
First, the speed with which it hit the parties. Jurisdictions around the world will be viewing the speed of this pandemic differently, depending on when and how they were hit. Mauritius was not among the first countries to be swayed by Covid-19 but it had to hit the brakes as swiftly as the first ones which were hit.
Secondly, the systemic resources available to the Government to deal with and resist the pandemic or at least mitigate the cataclysmic effects of this unprecedented calamity, which dictated a new world order.
Thirdly, the court is likely to analyse the preparedness of the party aiming to invoke the force majeure exception to exclude its liability, and the precautions it could have taken in order to absolve the plaintiff of the prejudice suffered.
Fourthly, the precautions which the parties took during the lockdown and curfew period will also be material in determining the attitude of the parties pretending that Covid-19 upset their commercial relationship.
Last but not least, is there anything in the contract of the parties or otherwise which precludes them from raising any event of force majeure to escape their liabilities? If so, the issue of whether Covid-19 would be an event of force majeure would therefore be of little, if any, importance to the parties. This matter is of significant importance and a requires a thorough review of contracts and agreements by your lawyer.
The Covid-19 pandemic swept the whole world off its feet by its propagation and fierceness. Numerous obligations, contractual and delictual, were in place before it came to disrupt them indefinitely, in various ways. In the end, it is all a question as to whether Covid-19 fulfils the inherent conditions of the force majeure, that is, whether the event was (1) unforeseeable; (2) irresistible and (3) external. As lawyers, we are here to further advise you on the terms of your contractual or delictual obligations, their implications for your business and guide you through to your remedies.
Keseena Chengadu, Executive Director
Centurion Law Group Mauritius