Force Majeure

The force majeure or major cause, or in Latin vis maior, is a fact that cannot be It cannot be avoided and it cannot be foreseen. It has great importance, in law, when establishing liability for damages.

To give an example, when a company does not offer a service due to force majeure, it can avoid paying damages, since it is not in its power to avoid it. The existence of force majeure normally releases one or both parties to a contract from their contractual obligations.

Excluded are causes that cannot be avoided but can be foreseen, which are called fortuitous events, and negligence, which are cases that could be avoided:

• If a person has hired a trip to the Caribbean at a travel agency and a hurricane is known to cross that area. You can't prevent the hurricane from destroying that area but you can cancel the trip to the customer and return the money.
• If the power supply fails because a transformer is damaged due to lack of maintenance. The breakdown was unexpected but was due to negligent maintenance.
• Another exclusion would be in the event that the origin of the ruling was unknown. It could not be appealed to the force majeure, because if not the companies would try not to discover or hide the origin of the ruling.

In any case, the force majeure clause is common in contracts, and serves to cover possibilities beyond the control of the parties such as natural disasters, wars, etc. Its interpretation is very important, because there are many cases that are on the border between force majeure and fortuitous event (such as, for example, strikes that prevent services from being provided).

In international law, force majeure refers to a force that is impossible to avoid or foresee, beyond the control of a State, and that makes compliance with an international obligation impossible.

Practical differences between fortuitous event and force majeure

Doctrinally, in Law, the fortuitous event is the step prior to force majeure: that event that could not have been foreseen nor, if it had been, could have been avoided. The law usually treats them similarly, and sometimes even confuses both cases, but there are differences. Although both concepts are diffuse and in many cases the legislation confuses them, the doctrine agrees in pointing out that, although a debtor can sometimes be forced to comply with an obligation that he failed to fulfill due to a fortuitous event, an obligation that he failed to fulfill can never be required. was breached due to force majeure.

The dispositive law normally exempts both cases, but liability in the fortuitous event is allowed to be agreed in the contract.

Legislation by country

Spain

In Spanish law, the Civil Code provides for force majeure in its article 1105. It is configured as a cause of exemption from liability: «Outside the cases expressly mentioned in the law, and those in which Even if the obligation declares it, no one will be responsible for those events that could not have been foreseen, or that, once foreseen, were inevitable.

Panama

In the Republic of Panama, as provided in article 34-D of the Civil Code, force majeure is the situation caused by man-made acts and fortuitous events are events of nature that could not be foreseen:

«Article 34-D. Force majeure is the situation produced by acts of man, which it has not been possible to resist, such as acts of authority exercised by public officials, capture by enemies, and other similar things.

It is fortuitous that comes from events of nature that have not been foreseen, such as a shipwreck, an earthquake, a conflagration and others of equal or similar nature. »