The "rebus sic stantibus" clause : an economic and legal understanding of an extraordinary change in relations in the face of post-2020 socio-economic change

Bibliogr. s. 28-30

Events such as the SARS-Cov-2 pandemic, persistently rising inflation and wars are reflected not only in social and political life, but also in economic transactions. This complicates the prediction of the effects of contracts and fulfilling them often negatively impacts at least one party involved. This research aims to determine whether instruments like the "rebus sic stantibus clause", outlined in Article 3571 of the Civil Code, can effectively mitigate the adverse effects of contracts. The analysis will be conducted through the lens of Law & Economics, with a focus on the practical application of Article 3571 in Polish jurisprudence. In the first part of the article, certain general assumptions and theses stemming from Law & Economic are examined. Of particular importance to the discussion is economic efficiency in the Pareto sense, which is closely linked to the bargaining model. This section concludes with an explanation, based on the bargaining model, of the requirements posed by economic analysis of law regarding obligations law, including the existence of the "clausula rebus sic stantibus". The second part of the article conducts a dogmatic analysis of Article 3571 of the Civil Code using tools from Law & Economics. This section also covers the general assumptions of the "rebus sic stantibus" clause and predictions regarding its application presented by representatives of legal sciences at the onset of the pandemic. Special attention is given to post-2020 jurisprudence related to the "rebus sic stantibus" clause. To structure the discussion, the article will be divided into four parts: inflation, currency fluctuations, the pandemic, and Article 3571 as a procedural demurrer. The discussion will also include the history of the "rebus sic stantibus" clause in the Polish legal system. The article will also explore alternative solutions that can substitute for the rebus sic stantibus clause. This paper aims to formulate preliminary conclusions about the understanding of extraordinary changes in circumstances after 2020 and assess whether the solutions currently adopted by courts are economically effective.