“Force Majeure” and Coronavirus Disease (COVID-19) under the Laws of Mauritius
“Force Majeure” and Coronavirus Disease (COVID-19) under the Laws of Mauritius
What is Force Majeure? A force majeure refers to the occurrence of an event which is outside the reasonable control of a party and which prevents that party from performing its obligations under a contract.
Therefore, “La force majeure est un cas d’exonération de la responsabilité.”
The “test” for force majeure is an objective test which requires the satisfaction of two criteria:-
(i) Imprévisible (dans la survenance de l’évènement)-Unpredictable (in the happening of the event)
Whether the event would normally be unpredictable for a reasonable person?
This criteria will be taken into account as from the conclusion of the contract.
(ii) Irrésistible (dans ses effets) - Irresistible (overwhelming)
Whether it is so overpowering as to go beyond the means of humans to resist or manage its consequences?
These criterion will be taken into account as from the non-performance of the obligations.
Art. 1147 of the Code Civil Mauricien, «le débiteur est condamné s’il y a lieu, au paiement de dommages et intérêts, soit à raison de l’inexécution de l’obligation, soit à raison du retard dans l’exécution, toutes les fois qu’il ne justifie pas que l’inexécution provient d’une cause étrangère qui ne peut lui être imputéem, encore qu’il n’y ait aucune mauvaise foi de sa part.» This translates to: the debtor is condemned if necessary, to the payment of damages, either because of the non-fulfillment of the obligation, or because of the delay in the execution, whenever he does not justify that the non-performance comes from a foreign cause which cannot be imputed to him, although there is no bad faith on his part.
Can COVID-19 be considered as an event of force majeure?
An illness is not necessarily nor automatically a case of force majeure. If the illness is one which is known, as well as its risks of spread and health effects, and that cures exist for same, it cannot be invoked as a reason for the inexecution of one’s obligations under a contract as the said illness would be considered as one being prévisible and résistible (predictable and resistible).
The situation is likely to be different for COVID-19 whereby many unknowns about the illness remain, requiring authorities and organisations over the world to exercise utmost caution by taking drastic and unprecedented measures. The measures taken by authorities and organisations over the world and the speed at which those measures are being taken, and which results in limiting and/or restricting and/or prohibiting transactions and/or displacement of people are circumstances which are likely to constitute a force majeure since those are likely to be measures which are imprévisible and irresistible (unpredictable and irresistible).
As at date of writing, France already declared COVID-19 as a force majeure event for Companies, which will prevent the application of penalties in case of in-execution of contractual obligations. There has been no such declaration in Mauritius so far but the local and global situation as at date might lead contractual parties to claim force majeure to release themselves from their obligations under the contract. However, there should exist a link between the execution of an obligation under a contract and the impossibility of carrying out the execution of this obligation.
Art. 1148 of the Code Civil Mauricien, «il n’y a lieu à aucun dommages et intérêts lorsque, par suite d’une force majeure ou d’un cas fortuit, le débiteur a été empêché de donner ou de faire ce à quoi il était obligé, ou a fait ce qui lui était interdit.» This translates to: there is no need for damages where, as a result of force majeure or a fortuitous event, the debtor has been prevented from giving or doing what he was obliged to do, or has done what he was was prohibited.
Therefore, special attention and care should be given to the chronology of the events linked to COVID-19 i.e. the coming into force of the measures which had an impact on the execution of the obligations under the contract. What are the remedies in the event you are temporarily or definitively prevented from executing your contractual obligations?
Force majeure releases the contracting party from their obligation and the other contracting party cannot claim damages for breach of contract, even if there are no specific provisions in the Contract in relation to force majeure.
When there is only a partial impossibility for the non-execution of one’s obligation, the contracting party is released only from the obligations concerned by the force majeure, not from all of their obligations.
If non-execution of one’s obligation is temporary, the execution of the obligation is suspended. The execution of one’s obligation should resume as soon as possible when the force majeure ceases.
However, if the delay due to the force majeure renders the contract obsolete or if the delay becomes permanent, the contracting party is released from their obligations and the other contracting party cannot claim damages for breach of contract.
Can you prevent the suspension or the termination of your Contract in the event of force majeure?
As the exoneration of liability in the event of force majeure is provided by the law, the only way to prevent its application is to contractually provide for a restriction or limitation of the consequences of a force majeure event.
If there exists a clause of Force Majeure in your Contract, attention should be paid to what it provides for. Even if we may consider that COVID-19 measures taken constitute a force majeure, “la liberté contractuelle des parties” may restrict and/or limit the consequences of a force majeure.
If there are no provisions of this nature in your Contract, you will have to ensure that the contracting party is effectively incapable to perform its contractual obligations. Otherwise, it will be prevented from suspending or terminating the Contract or it will be liable of damages if it suspends or terminates the Contract without cause.
For more information on Force Majeure and other legal issues in relation to COVID 19 as they arise worldwide, please visit Denton’s COVID-19 (Coronavirus) Hub:
© 2020 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content.
Please see dentons.com for Legal Notices. Dentons (Mauritius) LLP is a registered law firm under the Law Practitioners Act 1984.
Disclaimer: Nothing in this note should be construed as being legal advice. You should contact your legal adviser with proper instructions and seek advice should you need advice.
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How to buy real estate in Mauritius, as a non-citizen
How to buy in Mauritius as a non-citizenYou may be asking yourself how as a non-citizen are you able to buy a property in Mauritius. It’s simple. Philippe de Beer, CEO of Park Lane Properties explains how to acquire a property and how to obtain Permanent Residence with your real estate purchase:You can ONLY buy a property in developments which are “Accessible to non-citizens”.Over the years, different types of real ...Read more
Rights and obligations when renting a property in Mauritius
Rights and obligations when renting a property in MauritiusWhen looking for a property to rent in Mauritius, some important aspects should be considered as a tenant. The signing of a rental lease agreement certifies the rights and obligations of both parties, namely the Lessee and the Landlord.All the important details must be mentioned in this contract which must be carefully read so that everyone is aware of their rights and duties towards each other. The laws governing the renting of real estate are covered in the Civil Code of Mauritius, more specifically from Article 1721 to ...Read more
Investing in Rental Real Estate in Mauritius
Investing in Rental Real Estate in MauritiusMauritius provides a favorable environment for any kind of investment, including real estate investment. While some buy property for resale, others are more interested in rental real estate. Mauritius is of great interest to this type of investor because it offers considerable benefits. In this article, we invite you to discover good reasons to invest in rental real estate in Mauritius.Rental real estate, a more profitable investmentInvestment in rental real estate is the operation ...Read more
Fraser Institute Report: Mauritius well positioned
Fraser Institute Report: Mauritius well positioned in the Economic Freedom of the World ranking.The report, "Economic Freedom of the World: 2022" findings ranked Mauritius as ninth among the most pro-economic freedom countries.The first place is occupied by Hong Kong, followed by Singapore, Switzerland, New Zealand, Denmark, Australia, the United States, Estonia, Mauritius and Ireland. Mauritius is listed ahead of several major countries such as Japan (12th), Germany (24th), Italy (43rd), France (54th), India (90th), Russia ...Read more
Eligibility for the acquisition of a PDS property in Mauritius
Eligibility for the acquisition of a PDS property in MauritiusThe PDS programs represent an excellent opportunity for foreigners wishing to settle in Mauritius, whether as an individual or a company. The acquisition of a property within the framework of this scheme will make the buyers benefit from tax advantages in Mauritius. However, there are legal conditions for a person to officially acquire such property. In this article, you ...Read more
CAP TAMARIN - THE SMART & HAPPY VILLAGE in Mauritius
CAP TAMARIN - THE SMART & HAPPY VILLAGE in MauritiusImagine a place where you can savour each moment of every day! A place that allows you to live life to the fullest. A place where all the essentials are in close proximity. A place where adventure is a stone’s throw away. A place where people of all ages and cultures live together. A great place you can call home!An extension of the village of Tamarin and developed over an area of 44 hectares, Cap Tamarin is the smart village of tomorrow that puts YOU and YOUR HAPPINESS at the heart of all its developments. With the iconic La Tourelle mountain in the backdrop and ...Read more
Windfall for South Africans with property in Mauritius ?
Windfall for South Africans with property in Mauritius ?A great opportunity for South Africans to invest in real estate in MauritiusPORT LOUIS – A change to the regulatory requirements for property investment schemes that have lured many affluent South Africans to the Mauritian property market could boost the value of properties bought under the older, less stringent schemes.In its 2015/16 budget, the Mauritian government announced that the Integrated Resort Scheme (IRS) and Real Estate Scheme (RES) would be restructured and replaced by a new scheme, the Property Development Scheme (PDS). The PDS would require developers to ...Read more
Senior Habitat: Retiring in Mauritius
Senior Habitat: Retiring in MauritiusWhen retirement comes, many want to leave France to live in a new environment. Beyond a simple vacation, retirees plan to settle more permanently in the tropics. For some years now, Mauritius has become the most popular destination for retired French people. And this is not surprising. One just needs to see this heavenly place to be convinced. Offering numerous appealing advantages, it is a place that provides a whole new lifestyle. Whether it is for fiscal or health reasons, or any other aspect of life, the attraction for Mauritius is justified.An advantageous tax systemThrough its ...Read more
Property in Mauritius : Careful when buying property in direct with an owner
Property in Mauritius : Careful when buying property in direct with an ownerCautionary note on real estate acquisitions between individualsOn real estate sites online, including in Mauritius, you can find everything in terms of prices, with vendors trying to sell their property in Mauritius directly to potential buyers at a much higher price than the market price. It is best to find your property through a good realtor in Mauritius, recognized and patented. The real estate agent will tell you if the sale price is in line with the property market in Mauritius, and will tell you if it’s a good deal or if the property may be ...Read more
All about tax advantages in Mauritius
All about tax advantages in MauritiusIt makes sense why many foreigners have chosen to relocate and invest in Mauritius: The tax advantages here rank amongst the top 10 in the world!Mauritius emerged no. 13 out of 190 countries and no. 1 in Africa in the 2020 World Bank Doing Business Report. This is a jump from 20th place the previous year and the highest for Mauritius since 2007.Here are some of the tax advantages in Mauritius for residents and foreign investors:• double taxation agreements with more than 40 countries• income tax rate at a flat 15 percent• no taxes on dividends, ...Read more
Non-Citizens can now buy apartments above Rs 6 m
Non-Citizens can now buy apartments above Rs 6 mReal estate investment is now available to non-residents in MauritiusNon-Citizens can now buy apartments in Ground + 2 buildings without necessarily having an occupational permit in hand, which was the requirement previously, and with no limitation on the number of units being bought and with the right to rent them out, which was not the case up to now.The Non-Citizens (Property Restriction) Act has been amended on 20 December 2016 to allow foreigners to purchase apartments in condominium developments of at least two levels above ground (G+2) with the prior approval of the ...Read more
Real estate in Mauritius : Construction legislation - the 10 year guarantee is being put in place
Real estate in Mauritius : Construction legislation - the 10 year guarantee is being put in placeTen Year Guarantee for real estate developments in MauritiusIt would seem that new regulations are being put in place in Mauritius, for the benefit of buyers of properties in real estate developments in Mauritius. Excellent news ! Read the article attached published in l’Express newspaper in Mauritius on 8 april 2013 (article in french attached).Read more
3 reasons why Mauritius is becoming a hotspot for South Africans to retire!
3 reasons why Mauritius is becoming a hotspot for South Africans to retire!‘IT’S NO EASY DECISION TO LEAVE YOUR COUNTRY, CULTURE AND PEOPLE, HOWEVER MAURITIUS SEEMS TO BE AN INCREASINGLY EASY TRANSITION FOR MANY RETIREES.’ When it comes to the crux of it there are three simple reasons why South Africans are willing to pack up their lives, put their property up for sale and make a new life in Mauritius. 1. SUN AND SURFSimply put it’s a paradise. The lure of palm trees, cocktails out of coconuts and the piercing blue ocean that you see on the front page of getaway magazine becomes a daily ...Read more
Mauritius: the right choice to invest in real estate
Mauritius: the right choice to invest in real estateMauritius represents an interesting destination for expatriates for many reasons. Whether they are looking for a new life or just motivated by an investment in real estate, foreigners have found in Mauritius the ideal place to settle. A wonderful quality of life, a good geographical location between Africa and Asia, tax benefits ... this island has it all. If you are looking for an interesting opportunity, here is one that you should grab as quickly as possible.A very solicited investmentMauritius allows aRead more
Mauritius Budget 2020-21 Real Estate related measures
Mauritius Budget 2020-21 Real Estate related measuresSince the 31st May 2020, Mauritius has resumed its normal business activity after the end of the confinement was officially announced. In this critical socio-economic climate, Dr the Honourable R. Padayachy, Minister of Finance, Economic Planning and Development delivered his first budget speech Thursday 5th June, followed by a week of parliamentary discussions.You will find below the measures relating to the real estate sector as well as the measures taken to encourage non-citizens to choose Mauritius as a destination of choice to retire, live, work and invest ...Read more
January-April 2021 and real estate in Mauritius
January-April 2021 and real estate in MauritiusInvited by ionnews.mu, our CEO Philippe de Beer shared some valuable feedback about real estate in Mauritius during these first few months of 2021.Philippe de Beer: "It’s a good time for real estate investment"The year 2021 took the same turn as the previous one, with a second confinement which, "fortunately lasted less" rejoices Philippe de Beer, CEO and founder of Park Lane Properties. " Although real estate activities continued at a distance, it was difficult to close deals. With the lockdown, the signing of authentic deeds was postponed and the process of engaging ...Read more
COVID-19 Bill: Landlord and Tenant Act amended
COVID-19 Bill: Landlord and Tenant Act amendedWith the world leaders meeting, discussing, and finding ways to ease the population back into the workforce and active life, there has been important amendements made to 56 laws in Mauritius.Concerning the real estate sector, article 30 of the COVID-19 law (Miscellaneous provisions) relates to amendments to the law governing the rental of property (Landlord & Tenant Act) listed below, and granting a six-month moratorium on payment rent for those renting professional, commercial and residential premises. The objective is to allow those who could not or cannot pay their rent during the ...Read more
The concept of PDS in Mauritius
The concept of PDS in MauritiusIn recent years, Mauritius has opened to foreign investment by setting up schemes and incentives to encourage and facilitate foreign direct investment. Several initiatives have been taken to allow foreigners to acquire real estate in Mauritius. The first real estate investment scheme was the IRS (Integrated Resort Scheme) launched in 2002, then the RES (Real Estate Scheme) in 2006. In 2015, the authorities combined various elements from the IRS and the RES under a new scheme, the PDS (Property Development Scheme), which was then fine-tuned with some changes.The PDS program for social ...Read more
Sports Activities and Leisure Attractions in Mauritius
Sports Activities and Leisure Attractions in MauritiusActivities around nature in MauritiusYou have decided to go to Mauritius as part of your next vacation? It is a perfect choice as this country in the Indian Ocean is a destination most appreciated by many travelers. With a focus on family, Mauritius stands out for its unmatched conviviality. For your holidays, enjoy the various activities you will find around the island.Swimming with dolphinsAdults and children will certainly be delighted to meet wild and free dolphins. Why not go to the Bay of Tamarin and Black River to discover these sublime animals that ...Read more
Rent property in Mauritius
Rent Property in MauritiusWhen investing in real estate, there are many ways to make it a profitable investment, and one of them is to rent it out. In Mauritius, the rental property market is booming. Whether for houses, apartments or studios, the demand for long term rentals is there. They can come from Mauritians, expatriates or students. To properly rent out your property in Mauritius, it is important to know the market and be well accompanied.The importance of the geographical location of the propertyAlthough properties that are located outside urban areas are sought after for calm ...Read more
Tax advantages in Mauritius
Tax advantages in MauritiusMauritius is ranked among the most ethical countries in terms of taxation by the Organization for Economic Cooperation and Development (OECD). As such, it attracts many foreign investors. Companies, individuals or retirees, all come to benefit from the tax advantages offered by this island with dream landscapes. A flourishing real estate market, a booming economy, a stable political life, not to mention the advantages of a tropical climate, Mauritius is a flagship destination for expatriates and foreign investors.An advantageous tax systemMauritius is one of the countries with the lowest taxes. ...Read more
COVID-19 : The Mauritian real estate market and the prospects for recovery
COVID-19 : The Mauritian real estate market and the prospects for recoveryL’Express Properties interviewed Philippe de Beer, the CEO of Park Lane Properties, about his views and vision for the Mauritian property sector following the Covid-19 pandemic.The Coronavirus is all over the news, and each of us follows with the greatest attention, the many statistics and facts covered - in particular, concerning the consequences on global economy and real estate investments.EP: How did you organize yourself when the Coronavirus crisis affected Mauritius?PDB: Our team quickly set up a ’work ...Read more
Business Magazine interviews Philippe de Beer, CEO Park Lane Properties
Business Magazine interviews Philippe de Beer, CEO Park Lane Properties"Investment in commercial spaces has become more attractive than residential properties"25/10/2018. Business Magazine, the weekly economic magazine of Mauritius, asks Philippe de Beer for professional real estate advice:BM: What is your view on the evolution of the real estate sector since the beginning of the year?PDB: " The local real estate market remains very active. First of all, access to home ownership for an emerging middle class remains one of their primary objectives with ...Read more
What is so attractive with Mauritius and how is the property market ?
What is so attractive with Mauritius and how is the property market ?What is so attractive with Mauritius and why would someone come and live there ?Mauritius, a beautiful island in the middle of the Indian Ocean, situated in the ‘golden triangle’ connecting Asia, Africa and Australia, is undoubtedly one of the most attractive countries in the world to live in. An ideal combination of political and economic stability, a clean and safe environment, magnificient lagoons, great road infrastructures and relatively low tax rates make it the ultimate place of residence, easy air access, with a very convenient time zone with Europe ...Read more
Investing in Real Estate in Mauritius is Smarter Than Ever
Investing in Real Estate in Mauritius is Smarter Than EverWhite sand beaches, clear turquoise blue lagoons, lush tropical vegetation, untouched natural beauty, a favourable all-year round climate, beautifully designed homes… It’s easy to see how investing in property in Mauritius is becoming more and more popular with the young and the not-so-young.Many developments now offer sustainability, leisure, and commercial facilities, even schools, to complete the idyllic and privileged existence on one of the most beautiful islands in the world.“It’s not simply about buying a house, it’s about embracing a lifestyle. And ...Read more
International Schools in Mauritius
International Schools in MauritiusEducation in MauritiusThe education system in Mauritius is based on the British system as the island is a former British colony. The system is generally split up into pre-primary, primary, secondary and tertiary. The teaching of English and French is compulsory in all schools.Children enter primary school at age 5 and study for 6 years towards their certificate of primary education. After completing 4 more years, students write their O-Levels in at least 6 subjects. College-bound students continue for 2 more years in preparation for the A-Level examinations administered by ...Read more
BUDGET BRIEF 2016-2017 : measures relating to the real estate sector
BUDGET BRIEF 2016-2017 : measures relating to the real estate sectorThe Following measures will impact positively the real estate sector :REGISTRATION DUTIES· Exemption for a Mauritian acquiring a newly built dwelling costing less than Rs.6 million on land which is not on Pas Géométriques or within an Integrated Resort Scheme, Real Estate Scheme, Property Development Scheme or Hotel Invest Scheme during the period from 1 September 2016 to 30 June 2020.· Exemption for a promoter when acquiring land (which is not on Pas Géométriques or within an Integrated Resort Scheme, Real Estate Scheme, Property Development ...Read more
Buying buildable land in Mauritius
Buying buildable land in MauritiusA project to build a house depends, of course, on the acquisition of land. However, this cannot be done without giving it some thought and going through a process. The choice of the right residential land to build your villa is a decision that requires careful consideration for your real estate project. The ideal plot of land should meet a number of criteria related to its status to ensure you will be able to build on it. There are essential steps to take when embarking in the acquisition of land successfully.Choosing the right groundTo begin with, the first thing to do is to obtain the ...Read more
Customer Reviews Gain Weight in the Real Estate Industry
Customer Reviews Gain Weight in the Real Estate IndustryAfter conquering the tourism, hotel and ecommerce sectors, customer reviews are now gaining the real estate market.As individuals become increasingly demanding, industry professionals know not to underestimate their comments, or even capitalize on them. In a tense real estate market and with more and more volatile consumers, real estate professionals must offer an irreproachable customer service.When it comes to choosing a real estate agency to buy or sell a property, many individuals consider customer reviews, word of mouth or the advice of friends as essential ...Read more
Real Estate in Mauritius & Park Lane Properties : An overview of 2020
An overview of 2020The end of the year is already here and it’s time to breathe a huge sigh of relief when bidding goodbye to 2020 !It is with prudence, but also with a small tingle of excitement, that we all look forward to starting a new year ... anticipating that it will bring its load of promises and hope for everyone.When reviewing 2020, I am sure you fully agree with me that it was a very challenging year for everyone, far and near.Challenges lead to Adaptations and Record Results ...Read more