THE LEGAL ECHO OF THE PANDEMIC: ENGLISH, GERMAN AND CZECH PRIVATE LAW BETWEEN CONTRACTUAL RISK AND PUBLIC INTEREST – WHICH LEGAL REGIME HANDLES COVID-19 DISRUPTIONS MOST EFFECTIVELY?

Abstract

The COVID-19 pandemic profoundly challenged the principles of private law across Europe, exposing each legal system’s underlying philosophy of contractual stability and fairness under extraordinary circumstances. This paper examines how England, Germany, and the Czech Republic addressed pandemic-related contractual disruptions, focusing on their respective mechanisms of risk allocation and hardship relief.
The comparative analysis reveals that, while all three jurisdictions recognized the severity of the pandemic, the approaches they pursued diverged sharply in scope and effect. English law, faithful to its common law roots, maintained a strict adherence to freedom of contract and pacta sunt servanda, limiting judicial intervention to rare cases of frustration and narrowly interpreted force majeure clauses, in essence eschewing consideration of the broader pandemic context affecting contractual relations. The Czech Republic, though equipped with a newly codified hardship rule and a broad statutory framework for state compensation, exercised these tools only sparingly; its courts displayed marked hesitation to reinterpret private contractual relations in light of the pandemic’s implications.
In contrast, German law emerged as the most adaptive system. By effectively applying Section 313 BGB on interference with the basis of the transaction, the judiciary managed to recalibrate contractual equilibrium without undermining legal certainty. German courts consistently recognized COVID-19 as a fundamental disturbance justifying equitable adjustment rather than termination, thereby operationalizing the clausula rebus sic stantibus in a socially responsive manner.
The comparative outcome demonstrates that only the German approach achieved a balanced synthesis between stability and fairness. Yet the experience also points forward: as pandemics become foreseeable risks, the exceptional doctrines invoked during COVID-19 may lose their exceptional character, compelling future convergence toward stricter foreseeability standards and greater contractual self-responsibility.