Fortuitous Event & Force Majeure in Contract Law
Fortuitous Event and Force Majeure
Definition: Article 1272 of the Civil Code
The debtor is not obligated to pay damages when, as a result of a fortuitous event or force majeure, they have ceased to give or to do what was required or have executed what was forbidden.
Theories Differentiating the Two Expressions
- Of Roman origin:
- Fortuitous event: One that comes from natural accidents or falls outside the human will.
- Force Majeure: Comes from a third party, whether this third party acted legitimately or illegitimately.
- For Planiol:
- Unforeseeable circumstances: Those that prevent compliance because the event affects the subject of the provision.
- Force Majeure: Those that prevent compliance because of the event affecting the obligated person.
- For Josserand:
- Fortuitous event: A fact intrinsic to the circle of activity of the debtor.
- Force Majeure: An external event, foreign to the circle of activity of the debtor.
Special Rules for Certain Contracts
- In terms of leases: Doctrine defines ordinary fortuitous events as those that are reasonably predictable and extraordinary ones as those that are not reasonably foreseeable.
- In terms of Occupational Accidents: The employer is released from liability when the worker’s accident is due to force majeure unrelated to work, unless there is proof of the existence of a special risk.
The Fact of the Third Party as Grounds for Discharge of the Debtor
This refers to a fact that precludes the debtor from discharging an obligation, which originates in the activity or conduct of a person who is totally alien and distinct from those of the creditor and the debtor.
Loss of the Thing Due
This refers to when an obligation is tied to a certain thing, and it perishes, is outside of commerce, or is lost, so that its existence is utterly ignored, through no fault of the debtor.
Legal Regulations: Article 1344 of the Civil Code
When a certain thing, that was the subject of the obligation, perishes, or is out of commerce, or lost so that its existence is absolutely ignored, the obligation would cease if the goods have perished or been taken out of commerce or lost through no fault of the debtor and before it has incurred in delay.
Even where the debtor is in arrears, but has not taken over the danger of accidental loss, the obligation is extinguished if the thing would have perished also in the possession of the creditor, if it had been delivered.
The debtor is obliged to prove the alleged act of God.
Either way it has perished or been lost, if something was wrongly taken, its loss does not relieve the party who has removed it from the obligation to restore its value.
Requirements
This should occur after the parties have assumed their duties and not before; if it occurs before, it is due to a lack of a serious, non-existent object.
Cases that Occur in the Provision of Giving
- When the thing has been destroyed, in whole or in part.
- When the thing is out of commerce.
- When the thing is gone and its whereabouts are unknown or impossible to recover.
Effects
The debtor is discharged and relieved from liability, provided that no arrears were incurred to deliver the thing.
The Fault of the Creditor
This happens when the creditor’s intentional or negligent activity prevents the fulfillment of the debtor. The creditor is obliged to perform duties or engage in conduct which reasonably makes possible the fulfillment of the debtor.
Effects of a Foreign Cause Not Attributable to Fault
The fundamental effect is to produce a breach of the obligation. Doctrine has distinguished the effects as follows:
Effects on Non-Compliance
These are the forms of default giving rise to the non-attributable, extraneous cause:
- Definitive Failure
- Total Breach of the Obligation
- Partial Failure
- Temporary Failure: Delay in the breach.
Releasing Effect
This refers to the exemption of the debtor’s obligation to perform and civil liability. These fall into two categories:
- Permanent Releasing Effect: Occurs when the impossibility of carrying out the obligation is of a permanent nature.
- Temporary Releasing Effect: The debtor is prevented from discharging his duty as long as an obstacle exists, but it may be satisfied after the cessation of impossibility.
Restitutory Effects: Article 1184 of the Civil Code
One who is unjustly enriched at the expense of another person is required to compensate them, within the limits of their own enrichment, for everything by which the other person has been depleted.