Suspension of Obligations by Unforeseeable Circumstances or Force Majeure
The unforeseeable circumstances or force majeure, as a consequence of COVID-19, in the contractual framework.
Is it possible to consider the COVID-19 epidemic as a case of “unforeseeable circumstances or force majeure” that exempts contractors from paying the conventional penalty contained in the contracts?
As a result of the outbreak of Coronavirus (COVID-19), it is currently being questioned whether this pandemic could be considered as a “unforeseeable circumstances or force majeure” and thereby justify the breach of contractual obligations without liability for the obligor.
First, the scope of the term “unforeseeable circumstances or force majeure” needs to be determined. The collegial courts determine that the “unforeseeable circumstances or force majeure” distinguishes three categories of constitutive events:
(i) events of nature;
(ii) acts of man; and
(iii) acts of authority.
Subsequently, it is necessary to determine whether the act giving rise to the “unforeseeable circumstances or force majeure” causes the debtor to be physically unable to fulfil its obligation.
Finally, the main characteristics of the operative event will be determined: unpredictability, that the fact could not be foreseen by the debtor, and generality, which implies that the execution of the act is impossible for any person.
However, although the current global situation could mean that we all failed to meet our contractual payment obligations, it is necessary to analyse the precise situation of each contract.
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