Amid the current international sanitary crisis due to Covid-19 and the State of Alarm declared in Spain we should review the concept of "force majeure", which has become an unexpected protagonist these days. Despite that, the Spanish legislation does not contain any specific regulation.
This concept has been therefore developed by the Spanish doctrine and jurisprudence, defining force majeure as "an extraordinary event originated from outside, unforeseen and unavoidable even when applying utmost diligence".
Basing on this definition, it could be concluded that an event is considered to be "force majeure" if it meets the following characteristics:
– It is unforeseen: observation of the reality and consequences that are normally implied by usual events does not permit us to predict that this event will occur and will entail consequences of such scale.
– It is unavoidable or irresistible: we are unable to prevent either an event itself or its harmful consequences.
In spite of the above, the jurisprudence allows to apply a larger margin to the characteristics indicated in two previous points, admitting that force majeure might take place even if having been foreseen, it was impossible to avoid it.
– It has external nature: it is originated and is developed outside the sphere of power and influence of a person.
The legal consequence of force majeure under article 1.105 of the Spanish Civil Code consists in that: "nobody will be liable for those events that could not have been foreseen, or although they could have been foreseen, they were inevitable".
According to the doctrine, the exemption from liability in this case refers solely to compensation for damages, suspending the main obligation but not exempting the debtor from it forever.
Finally, it is important to highlight that force majeure does not apply automatically but must be proven by the interested party.
Undoubtedly the current situation we are living can be considered an event of force majeure which will entail inevitable breach of many contracts and obligations. Thus, from Martí & Associats we recommend negotiating legal consequences case by case aiming at reaching a balanced agreement for both parties.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
