One can think of contract liability risk and/or liability risk related to governments measures. In the field of contract liability, companies need to go over their existing contracts for interpreting force majeure and/ or hardship clauses and reexamine the legal position in the COVID-19 era.
In this context, any party to a contract may make use of the COVID-19 as force majeure event in order to a. avoid its obligations by invoking a force majeure clause or b. limit its liability for breach of contract, or c. allow adjustment of the contract in a way that reflects the new environment. Typically, most commercial contracts include provisions that allow parties to be excused from their contractual obligations in the event of critical and unpredictable circumstances beyond their control which may delay or make performance impossible for one or both parties, both the in form of force majeure and in the form of hardship clauses.
Under Greek law, force majeure and hardship may be invoked as a general principle of law, even in the case of lack of specific provision in a contract. To be noted that under the Greek Civil Code hardship provision (art. 388) the readjustment of the obligations of the party affected can be done by the Court, without this depriving the parties from their right to renegotiate their terms.
Beyond the actual existence of an event of force majeure, for such an event to discharge a person from liability, it is essential to demonstrate that the aforesaid event has an actual impact on the party’s performance and that there is a causal link between the event and the party’s failure to perform its contractual obligations. Depending on the way that this clause is formulated in a contract, the party invoking force majeure may need to establish that performance of its contractual obligations was either obstructed or delayed or made unachievable outright. In practice, Greek courts will most likely interpret the impact requirements strictly, in case where the parties have not expressly set out to which extent the degree of the breach suffices for triggering the “force majeure” clause.
Regarding risks related to the measure taken by the Government: As per article 44 par. 1 & 2 of Government’s Order of 01-05-2020 entitled ‘’Further measures to address the ongoing consequences of the COVID-19 coronary pandemic and the return to social and economic normalcy’’, a joint ministerial decision that shall be issued following a reasoned opinion of the National Commission for the Protection of Public Health against the COVID-19 pandemic, in whole or in part in the State, impose certain measure in public services, private companies or their categories, as well as in any other, public and private, public gathering places such as: a) the mandatory use of a mask, b) measures to maintain a maximum ratio of individuals per certain area and minimum distance between them, c) personal hygiene and protection measures, d) special operating rules. In particular for companies that violate the above measures, for each violation, with a justified act of the competent authority, an administrative fine of one thousand (1,000) to one hundred thousand (100,000) euros and suspension of operation for a period of fifteen (15) to ninety (90) days may be issued.
Last but not least, in the field of tourism industry, as per article 60 par. 5 of Law 4688 Government Gazette A 101 / 24.5.2020, companies active in this field are not held liable for contamination of a client form COVID-19, in case they can prove the proper application of the terms of the COVID-19 related health protocols stipulated in the aforesaid Law. The injured party bears the burden of proving the damage suffered and the causal link between the inappropriate application of the terms of the special health and safety protocols and the damage.
