Article
COVID-19 and force majeure in Spanish contracts
10/07/2020
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Published in Thomson Reuters
Force majeure is regulated in the Spanish Civil Code as an exception or limit to the general principle of the obligatory nature of contracts (that is, that agreements that are legally binding must be performed).
Article 1,105 states that:
“Apart from the cases expressly mentioned in the law, and those where the obligation requires it, no one shall be liable for events which cannot be foreseen, or which, if foreseen, are unavoidable”.
Article 1,105 of the Spanish Civil Code refers to both force majeure and cas fortuit. The distinction between them is mainly academic in the sense that force majeure usually emphasises the unavoidability of the event that excuses a party from fulfilling its contractual obligations, as agreed with the counterparty. (Supreme Court judgment of 30 September 1983 [RJ 1983, 4688]).
The force majeure exception can apply even if the parties to a contract have not included a force majeure clause. According to Article 1,105 of the Spanish Civil Code and its further development in Spanish case law, the requirements for an event to be considered as force majeure are:
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