124 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY are so unusual as to upset the necessary balance between the parties’ performances); and ii) To be successive in nature (the rebus sic standibus clause is difficult to justify in a contract that is terminated by compliance). In Portugal, this clause has a legal provision in the article 437 of the Portuguese Civil Code that states the following: “If the circumstances in which the parties based the decision to contract have suffered an abnormal change, the damaged party has the right to terminate the contract, or to modify it according to equity judgments, provided that the fulfilment of the obligations assumed under the contract severely affects the principles of good faith and is not covered by the risks inherent to the contract”3. Either legally ruled or doctrinal and jurisprudential constructed, the necessary requirements to be met for its application are more or less the same, and always implies a comparison between the time the contract is entered into and the time it is performed, in order to find out if there is an exorbitant disproportion between the services provided by the parties, which must have occurred due to an unforeseeable risk and, subsidiarity, since no other remedy is possible. These requirements are as follows: a) Extraordinary alteration of circumstances. A radical change in the factual basis of the contract must be understood to mean that the factual circumstances in which the contract was made are replaced by others which differ substantially from them; b) Exorbitant disproportion between services. It is necessary that the extraordinary alteration of the circumstances that form the basis of the legal-contractual business leads to a complete rupture of the terms of reciprocity and equivalence between the services in which the contract was concluded; c) Overcoming radically unpredictable circumstances. The emerging cause of disproportion must be qualified as unforeseeable when it appears that neither party could reasonably have taken it into account at the time of the signing of the contract by exercising due diligence; d) Lack of other means of rebalancing. The rebus sic stantibus clause will only be applied in the absence of any other remedy. 3 Translation from the author.
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