CHARACTER AND THE LEGAL REGIMEN OF THE CLAUSULA REBUS SIC STANTIBUS: THE TURN IN THE CASE LAW’S POSITION

Abstract

Clausula rebus sic stantibus attempts to solve problems stemming from a supervising change in the circumstances that applied when a contract was concluded, causing a change so drastic that it either increases the burden in an extraordinary fasion or frustrates the contract´s very purpose. We take a close look showing that case law's position on the application of clausula rebus sic stantibus has always been very restrictive. We also study the interesting Supreme Court ruling of 30 June 2014, whose most novel aspect is that it accepts the application of clausula rebus sic stantibus in certain cases where the economic crisis has made it impossible for real state buyers to obtain financing, provided that certain circumstances are present that give rise to an extraordinary change in the circumstances, making for a severe upset of the proporcionality of the parties´obligations. The restrictive criterion that the Supreme Court once hewed to regarding the application of clausula rebus sic stantibus gave way in this ruling and in the ruling of 15 October 2014 to a stance that looks more favourably on an open interpretation, taking ac-count of the circumstances of each particular case, which the author considers wise.