What does the Spanish Civil Code say about force majeure?

Question

José Manuel Alburquerque · Accepted Answer

Article 1105 of the Spanish Civil Code (“Código civil”) says that no one is liable for events that could not be foreseen or that, even if foreseen, were unavoidable, unless the law or the contract itself says otherwise. This is the rule on force majeure and fortuitous events (“caso fortuito”), which also applies in Catalonia. Whoever relies on it must prove that the event was unforeseeable or unavoidable, that it was beyond their control and that it was what prevented them from performing. It releases them from paying damages, but does not allow them to keep what they were paid for what they have been unable to do. What the law says Article 1105 provides that, except in the cases specified by law or by the contract, “nadie responderá de aquellos sucesos que no hubieran podido preverse, o que, previstos, fueran inevitables” (no one shall be liable for events that could not have been foreseen or that, though foreseen, were unavoidable). This is the rule that applies when people speak of force majeure or fortuitous events, even though it does not use those words. In Catalonia this same article applies, because the “Código Civil de Cataluña”, the Catalan Civil Code, has no general rule of its own, not even for sales. For it to release a party that fails to perform, these conditions must be met: An event that could not be foreseen or that, though foreseen, could not be avoided, such as a flood, an earthquake or a closure ordered by the authorities. That it is beyond the control of whoever relies on it. That it is the real cause of the failure to perform. It must be proved by whoever relies on it. In most of the rest of Spain the same article applies. When it is no excuse If the contract or the law places that risk on the party that had to perform. Many contracts have a force majeure clause that states which events count and what happens in that case, so it is worth reading it first. If whoever had to deliver something was already in default (“mora”) when the event occurred, that is, late after having already been asked to perform. From then on, that risk is borne by them. If the event could have been avoided with ordinary diligence. A foreseeable breakdown of your own van, staff shortages or a price rise are not force majeure. With money debts. Paying almost never becomes impossible, so force majeure may explain a delay, but it does not release anyone from paying. What happens to the contract If the impediment is temporary, performance is postponed until it disappears. If the delay makes the contract pointless, as with a wedding banquet, it is treated as permanent. If it is permanent, the obligation is extinguished. In contracts in which both parties take on obligations, the other party does not have to perform its side either and can ask for the return of what it paid, though without compensation. A party that cannot perform would do well to notify the other party in writing straight away, explaining with evidence what has happened and proposing a solution, such as a new date. Force majeure makes performance impossible. If performance is still possible but has become much more onerous because of an extraordinary change of circumstances, the issue is a different one, that of the rebus sic stantibus rule, which in exceptional cases allows the contract to be adjusted.