Rebus sic stantibus is a Latin expression that can be translated as "things being like this".
The expression is widely used in the area of Law, having applications in Criminal Law, Civil Law and International Law.
In general this clause means that situations or obligations they will be valid as long as the situation that gave rise to them remains.
Rebus sic stantibus and pacta sunt servanda
the clause rebus sic stantibus relates to the pacta sunt servanda, Latin expression that means "contracts must be fulfilled". This term is a reference to the mandatory fulfillment of contracts, as it provides that the signing of an agreement obliges the parties to comply with it.
Thus, the rebus sic stantibus should be understood as a exception to the general rule that determines the fulfillment of contracts until the end of its validity (pacta sunt servanda).
This permission exists because the rebus sic stantibus allows that, in special situations, one of the parties may not be required to comply with what was contracted, allowing unforeseen situations or abusive clauses to be revised.
Rebus sic stantibus in Civil Law
In the area of Civil Law, the expression has a meaning related to contracts and Consumer Law.
Comparing with the literal meaning of the expression (this being the case), in contracts the expression means that an agreement will retain its validity as long as the combined conditions are preserved.
The situation in relation to the signed contracts is justified by the need to ensure that contracts will be fulfilled.. However, it is necessary to know that circumstances may occur that change the situation, leaving it different from what it was when the contractual agreement was made.
Rebus sic stantibus and the Theory of Prediction
the clause rebus sic stantibus, especially in relation to contracts, is linked with the Theory of Unpredictability. This theory exists to protect contractors from unexpected situations that can cause changes during the term of a contract.
The Unpredictability Theory is especially important for long contracts, as they are more likely to suffer unexpected changes. Theory is a way to guarantee justice between the parties, in addition to guaranteeing the fulfillment of what was agreed in a contract.
Thus, the clause rebus sic stantibus allows situations that have changed, and that were not foreseen when the contract was signed, can be reviewed by the parties to ensure that the agreement will be fulfilled.
In which situations can the clause be applied?
It is important to know that the changes are related to situations that were not foreseen and that cannot be controlled by the parties.
THE rebus sic stantibus it does not apply to cases where one of the parties just fails to comply with what was agreed upon. Example: when a person who is obligated to make a payment and does not. In this situation, not making a payment due is a breach of the contract, not an unforeseen change.
Consumer Protection Code
In relation to the Consumer Protection Code (CDC) the clause allows, in some cases, that the contract can be revised, if there is a change that could cause damage to any of the parties.
The CDC provides for this possibility in article 6, item V:
Basic consumer rights are: modification of contractual clauses that establish benefits disproportionate or their revision due to supervening facts that make them excessively onerous.
Rebus sic stantibus and the court sentences
In relation to court judgments, the general rule of law provides that changes in cases already judged, with final judgment (when there is no longer any possibility resource).
But, in some cases, the situation can be changed and the sentence can become worthless. Thus, in certain situations the obligation defined in a judgment may no longer exist.
For example: a judgment given in a child support claim. The situation that motivates the alimony can change over time. If the pension is granted to a minor child, it will be valid for a certain period. When the child reaches 18 years of age or when he can already be responsible for supporting himself, the decision can be changed and the payment obligation ceases to exist.
Rebus sic stantibus in criminal law
In the area of Criminal Law, the clause rebus sic stantibus it has application in cases of preventive detention, when there is any change in the situation that gave rise to the arrest warrant.
Rebus sic stantibus in preventive detention
Regarding preventive detention, the clause applies to issues that can be modified. This is because preventive detention can only be ordered in specific pre-defined situations. If the situation that motivated the arrest changes, the clause rebus sic stantibus can change the prison situation.
For example: if the grounds that generated the preventive detention are changed, the judge can cancel the detention order. The opposite can also happen: a preventive detention may not have been decreed for lack of justification, but, if there are changes, the rebus sic stantibus allows the arrest to be determined.
Rebus sic stantibus in international law
the clause rebus sic stantibus it also applies in the area of international law. Similar to contracts, the clause can be applied to issues involving countries that sign an International Agreement or Treaty.
If there is any considerable change in this situation, there is the possibility that a country will be released from fulfilling an obligation provided for in an International Agreement. It may also happen that the Treaty is terminated.
This permission is from the Vienna Convention, published in 1969. The Convention determines the chances of application of the clause rebus sic stantibus:
- Violation of the terms of the Treaty by one of the countries that is part of it (Article 60).
- End of a situation that is fundamental for the fulfillment of the agreement (article 61).
- Consistent change in the circumstances of the Treaty (Article 62).
- Emergence of hostility or disagreement between countries (Article 73).
Read more about the meanings of Pacta sunt servanda, Civil right and Consumer Law.