Should we get used to contractual vaccination obligations and corona clauses?

The coronavirus has ruled our world for almost a year and a half now. The effect of this crisis can be sensed in society, the economy, and the law. Harriët Schelhaas, professor of Private Law and Vice Dean of bachelor education at Erasmus School of Law, explains the effects of this crisis on contracts.

The principle of freedom of contract entails that parties in the private sector are, in principle, free to determine with whom they close a contract and what content they give to the contractual relationship, as long as they stay within the limits of the law. “However, the freedom of contract has in many cases been threatened by the corona crisis”, according to Schelhaas.

Can a corona vaccination or a negative test be demanded?
The principle of freedom of contract applies to the private market. This means that vaccination and testing obligations can be included in a contract as a requirement, especially when it comes to so-called ‘non-essential services’, such as festivals and sports events. “Although this is permitted, it is essential to point out that this freedom is limited because human rights could be at stake and because it should in no way conflict with the Dutch standpoint of no vaccination obligation. This could happen if the inclusion of these requirements is used on such a large scale that an indirect vaccination obligation arises”, according to Schelhaas. “But as long as the virus is still around in this capacity, there is sufficient reason to use and enforce a contractual vaccination obligation.”

Unforeseen circumstances as a reason for contract change
The current crisis also impacts contracts in a different way. Although contracts must be fulfilled, the contract can be changed due to unforeseen circumstances, if these circumstances significantly disturb the contractual balance. “The fundamentals of contract law must be taken into account, and not every imbalance can be a reason to adjust a contract. But the seriousness, nature and content of the corona crisis are creating an unprecedented global health crisis, in which a violation of freedom of contract is justified in order to share the disadvantages of this unprecedented and disruptive economic, humanitarian and social crisis among parties”, according to Schelhaas.

Corona clauses
In the article, Schelhaas draws attention to clauses regarding the consequences of a pandemic, which were very rare before the corona crisis. That is very different now. "After the bomb clause as a result of 9/11 and the tsunami clause as a result of the tsunamis in Asia, the pandemic clause, also known as the corona clause, has now made its appearance. The pandemic clause is intended to strengthen the binding force of contracts. By covering the possible consequences of the crisis in a clause and making provisions for this, an appeal to unforeseen circumstances is limited and, therefore, the freedom of contract and contractual relationship are strengthened”.

More information

Read the full article here (in Dutch).

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