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8 China-EU L.J. 1 (2022-2023)

handle is hein.journals/caeulwj8 and id is 1 raw text is: China-EU Law Journal (2022) 8:1-9 https:I/doi.org/l0.1007/si2689-021-00091-5 ARTICLE Covid-19 and contracts in China and Europe Jacques Henri Herbots' Accepted: 8 September 2021 / Published online: 29 November 2021 © China-EU School of Law 2021 Abstract The purpose of this succinct contribution is to present to the readers the Chinese law of contract on force majeure and hardship, in a comparative perspective from a Euro- pean point of view. The concept of foreseeability of the event rendering the performance of the contract impossible or unbearably difficult is used as an eye-catcher. The two concepts force majeure and hardship are close to each other, but must be sharply distinguished. One has to also distinguish the foreseeability of the event (of force majeure or hardship), which causes the hindrance of the performance of the con- tract, from the foreseeability of the damage suffered because of the non-performance. Keywords Covid-19 - Force majeure - Contract The Covid-19 pandemic, lockdowns and other preventive measures can be put for- ward by a party in a legal claim based on the non-performance of a contract. For each dispute, however, it is necessary to prove that the outbreak, the measures and its consequences for the contractual situation were not foreseeable when the con- tract was concluded. That is so in Chinese, as well as in European law.' Some may believe that the empress dowager of the Qing dynasty, Cixi, could have foreseen the outbreak in her famous fortune-telling crystal ball, now on display in the museum of Philadelphia. The point of view of the Supreme People's Court is more prosaic: could the catastrophe have been foreseen, or not, by a normal citizen,-the man on the Clapham omnibus, or as they say in Hong Kong, the man on the Shaun kei wan tram, in other words someone who is not an expert, for instance a virologist. That is of course a question of fact which has to be proven at court.2 For the principles of a European law of contract, one could consult: Beale et al. (2010), Hartkamp (2011), Lando and Beale (2000) and Smits (2014). 2 A guiding opinion of 2009, cited below, uses the phrase: the People's Courts shall assess whether the risk was unforeseeable according to the general social opinion and whether the extent of the risk was far beyond the normal reasonable expectation of an ordinary person. E Jacques Henri Herbots monty.silley@uni-hamburg.de; jherbots20l2@yahoo.com KU Leuven, Leuven, Belgium I_) Springer