Music and the law : Musical events in times of coronavirus
An example from the practice of the legal advisor of the Swiss Society for Music Pedagogy SSPM: Yvette Kovacs, Doctor of Law, SSPM legal advisor and attorney-at-law in Zurich, answers questions from SSPM members.
Question from an SSPM member: I periodically organize events for the music schools of which I am an employee in order to publicize and promote our activity. However, the school has cancelled the event scheduled for the end of March because of the coronavi-rus. I had already ordered the technical facilities, catering, etc. and spent many extra hours preparing for it. What's going to happen with these expenses and the whole event?
Response from Yvette Kovacs:
1. The appearance of a virus is nothing extraordinary from a legal point of view. We are familiar with this situation from the flu epidemics that strike us every year. The emergence of a particularly contagious virus, against which there is as yet no vaccine or specific treatment, is also familiar from swine flu, bird flu, etc. What is unusual about today's situation is that it is not a virus that is particularly contagious. What is unusual today is the global dimension of the epidemic, which is increasingly paralyzing the world economy. This is due not only to the cases of disease themselves, but also to the fear aroused by the constant progression of the epidemic, and to the voluntary or state-ordered quarantine measures imposed on the population.
2. From a legal point of view, the first thing to check is whether the contract between the parties regulates this type of problem. If so, the solution provided for in the contract applies.
3. If nothing is stipulated in the contract, legal regulations apply. These stipulate that: An obligation is extinguished when its performance becomes impossible as a result of circumstances not attributable to the debtor. In bilateral contracts, the discharged debtor is obliged to return what he has already received, according to the rules of unjust enrichment, and can no longer claim what was still owed to him. Special regulations applicable to certain contracts and providing for a different legal allocation of risk remain reserved.
This means that in the event of subsequent objective impossibility (in other words, if performance was still possible when the contract was concluded, but has subsequently become impossible), both contracting parties are released. Expenditure planned for the event does not have to be incurred, nor is payment due.
4. The question is whether it is objectively impossible today, and whether the force majeure clause applies to the current situation. In this case, the prevailing doctrine can be summarized as follows:
If the state prohibits the event from taking place, this decision leads to a sub-sequential objective impossibility of performance, and is therefore a case of force majeure.
Until March 16, 2020, the situation was as follows: events attended by more than 100 people were prohibited throughout Switzerland, and could not be staged. For events attended by between 2 and 99 people, or presenting any other particular risk (e.g. those aimed primarily at the over-65s), the organizer was required to carry out a risk assessment in conjunction with the cantonal physician. If the event was forbidden, this was a case of force majeure. On the other hand, if the event was authorized by the canton, it was not legally a case of force majeure or impossibility. Any cancellation or postponement would therefore have had to be qualified as a culpable breach of contract. Even if the event had not taken place, the contractual partners would have been entitled to the full cash payment, minus the costs saved.
Since March 17, 2020, a new right of necessity has been in force and all demonstrations are prohibited. These are therefore objectively impossible for reasons of force majeure.
5. For employees, the situation is more favorable, as the general distribution of risk described above is governed by another legal regulation: if the employee falls ill with the coronavirus, he or she is entitled to his or her salary for a fixed period, which varies according to the contract and years of service, and is protected against dismissal during the illness. The same applies for a period of 3 to 5 days if the employee's children are ill and the employee has to organize their care. However, this rule does not apply to a simple quarantine. In this case, the music school is not obliged to pay, as it is not part of its operating risk.
6. If you were able to or had to hold an event before March 17, 2020, you were responsible for ensuring the best possible protection of participants. In particular, you had to demonstrate compliance with the following rules:
-check official sources at least once a day to see how the threat is evolving and what the health authorities are doing to prevent it;
-indicate that a cancellation or postponement may be decided in the short term depending on the threat and the prescriptions of the health authorities;
-draw up an emergency plan specifying what measures need to be taken and when, when the event needs to be postponed or cancelled, who needs to inform whom in the event of cancellation, and who needs to take further action;
-display the FOPH's current instructions on behavior and hygiene prominently at the entrance;
-Provide sufficient opportunities for hand washing and disinfection;
Tell participants and stakeholders that people coming from high-risk regions and suffering from symptoms should stay at home;
-Check the contracts concluded with participants and spectators and try to find, before the event takes place, a valid supplement governing additional obligations and financial consequences;
-check insurance ;
-communicate the measures through various channels, particularly if the event has to be postponed or cancelled at the last minute;
-To avoid unnecessary costs, you have an obligation to limit damage.
Document everything you've checked and undertaken, as you may have to prove much later in a lawsuit that you've met your duty of care.
7. The outbreak of the coronavirus epidemic and its serious consequences were not, of course, dealt with in the old contracts. This is why there is still a great deal of uncertainty about the legal consequences for individuals and the economy. But the problem is now known, and it is clear that it will continue for an unknown length of time. For this reason, I strongly recommend that the following issues be explicitly discussed and resolved in future event contracts, or that existing contracts be supplemented accordingly by mutual agreement:
-What circumstances could prevent the event from taking place?
-What will be the consequence: cancellation or postponement?
-What happens to preparation costs and fees in the event of cancellation or postponement?
-What will happen to spectators' tickets? Will they remain valid for the re-sale date? Or will they be fully or partially refunded?
-Is it possible/necessary to take out insurance for economic consequences? Who must take out such insurance, and under what conditions?
Depending on risk and economic capacity, these clauses can vary widely. But in view of today's serious problems, they must always be drafted with great care.
8. Answer to the SSPM member's specific question: As an employee, you are entitled to the salary stipulated in your employment contract for all your activities, including overtime compensation. Entitlement to compensation from third parties such as technicians and caterers depends on the specific contract. If the contract does not contain a corresponding clause, and the event has been banned by the government, they will not be entitled to compensation. If, on the other hand, the event was not officially banned, they are entitled to the full compensation provided for in the contract, less any costs saved.
I recommend that you suggest to the music school that, if at all possible, it should not cancel the event, but postpone it so that all services can then be mutually provided by the participants in accordance with the contract.
It has been announced that compensation and loans will be granted to people who have suffered damage as a result of these emergency rules. However, it is not yet known what form this compensation will take, or under what conditions it will be granted.
An example from the practice of the legal advisor of the Swiss Society for Music Pedagogy SSPM: Yvette Kovacs, Doctor of Law, SSPM legal advisor and attorney-at-law in Zurich, answers questions from SSPM members.
Question from an SSPM member: I periodically organize events for the music schools of which I am an employee in order to publicize and promote our activity. However, the school has cancelled the event scheduled for the end of March because of the coronavi-rus. I had already ordered the technical facilities, catering, etc. and spent many extra hours preparing for it. What's going to happen with these expenses and the whole event?
Response from Yvette Kovacs:
1. The appearance of a virus is nothing extraordinary from a legal point of view. We are familiar with this situation from the flu epidemics that strike us every year. The emergence of a particularly contagious virus, against which there is as yet no vaccine or specific treatment, is also familiar from swine flu, bird flu, etc. What is unusual about today's situation is that it is not a virus that is particularly contagious. What is unusual today is the global dimension of the epidemic, which is increasingly paralyzing the world economy. This is due not only to the cases of disease themselves, but also to the fear aroused by the constant progression of the epidemic, and to the voluntary or state-ordered quarantine measures imposed on the population.
2. From a legal point of view, the first thing to check is whether the contract between the parties regulates this type of problem. If so, the solution provided for in the contract applies.
3. If nothing is stipulated in the contract, legal regulations apply. These stipulate that: An obligation is extinguished when its performance becomes impossible as a result of circumstances not attributable to the debtor. In bilateral contracts, the discharged debtor is obliged to return what he has already received, according to the rules of unjust enrichment, and can no longer claim what was still owed to him. Special regulations applicable to certain contracts and providing for a different legal allocation of risk remain reserved.
This means that in the event of subsequent objective impossibility (in other words, if performance was still possible when the contract was concluded, but has subsequently become impossible), both contracting parties are released. Expenditure planned for the event does not have to be incurred, nor is payment due.
4. The question is whether it is objectively impossible today, and whether the force majeure clause applies to the current situation. In this case, the prevailing doctrine can be summarized as follows:
If the state prohibits the event from taking place, this decision leads to a sub-sequential objective impossibility of performance, and is therefore a case of force majeure.
Until March 16, 2020, the situation was as follows: events attended by more than 100 people were prohibited throughout Switzerland, and could not be staged. For events attended by between 2 and 99 people, or presenting any other particular risk (e.g. those aimed primarily at the over-65s), the organizer was required to carry out a risk assessment in conjunction with the cantonal physician. If the event was forbidden, this was a case of force majeure. On the other hand, if the event was authorized by the canton, it was not legally a case of force majeure or impossibility. Any cancellation or postponement would therefore have had to be qualified as a culpable breach of contract. Even if the event had not taken place, the contractual partners would have been entitled to the full cash payment, minus the costs saved.
Since March 17, 2020, a new right of necessity has been in force and all demonstrations are prohibited. These are therefore objectively impossible for reasons of force majeure.
5. For employees, the situation is more favorable, as the general distribution of risk described above is governed by another legal regulation: if the employee falls ill with the coronavirus, he or she is entitled to his or her salary for a fixed period, which varies according to the contract and years of service, and is protected against dismissal during the illness. The same applies for a period of 3 to 5 days if the employee's children are ill and the employee has to organize their care. However, this rule does not apply to a simple quarantine. In this case, the music school is not obliged to pay, as it is not part of its operating risk.
6. If you were able to or had to hold an event before March 17, 2020, you were responsible for ensuring the best possible protection of participants. In particular, you had to demonstrate compliance with the following rules:
-check official sources at least once a day to see how the threat is evolving and what the health authorities are doing to prevent it;
-indicate that a cancellation or postponement may be decided in the short term depending on the threat and the prescriptions of the health authorities;
-draw up an emergency plan specifying what measures need to be taken and when, when the event needs to be postponed or cancelled, who needs to inform whom in the event of cancellation, and who needs to take further action;
-display the FOPH's current instructions on behavior and hygiene prominently at the entrance;
-Provide sufficient opportunities for hand washing and disinfection;
Tell participants and stakeholders that people coming from high-risk regions and suffering from symptoms should stay at home;
-Check the contracts concluded with participants and spectators and try to find, before the event takes place, a valid supplement governing additional obligations and financial consequences;
-check insurance ;
-communicate the measures through various channels, particularly if the event has to be postponed or cancelled at the last minute;
-To avoid unnecessary costs, you have an obligation to limit damage.
Document everything you've checked and undertaken, as you may have to prove much later in a lawsuit that you've met your duty of care.
7. The outbreak of the coronavirus epidemic and its serious consequences were not, of course, dealt with in the old contracts. This is why there is still a great deal of uncertainty about the legal consequences for individuals and the economy. But the problem is now known, and it is clear that it will continue for an unknown length of time. For this reason, I strongly recommend that the following issues be explicitly discussed and resolved in future event contracts, or that existing contracts be supplemented accordingly by mutual agreement:
-What circumstances could prevent the event from taking place?
-What will be the consequence: cancellation or postponement?
-What happens to preparation costs and fees in the event of cancellation or postponement?
-What will happen to spectators' tickets? Will they remain valid for the re-sale date? Or will they be fully or partially refunded?
-Is it possible/necessary to take out insurance for economic consequences? Who must take out such insurance, and under what conditions?
Depending on risk and economic capacity, these clauses can vary widely. But in view of today's serious problems, they must always be drafted with great care.
8. Answer to the SSPM member's specific question: As an employee, you are entitled to the salary stipulated in your employment contract for all your activities, including overtime compensation. Entitlement to compensation from third parties such as technicians and caterers depends on the specific contract. If the contract does not contain a corresponding clause, and the event has been banned by the government, they will not be entitled to compensation. If, on the other hand, the event was not officially banned, they are entitled to the full compensation provided for in the contract, less any costs saved.
I recommend that you suggest to the music school that, if at all possible, it should not cancel the event, but postpone it so that all services can then be mutually provided by the participants in accordance with the contract.
It has been announced that compensation and loans will be granted to people who have suffered damage as a result of these emergency rules. However, it is not yet known what form this compensation will take, or under what conditions it will be granted.
