A fortuitous event (also called force majeure or an act of God) is an event that could not be foreseen, or which though foreseen was inevitable. The general rule is that no person is responsible for those events that could not be foreseen or which, though foreseen, were inevitable — so a debtor is generally excused from liability when performance is prevented by a genuine fortuitous event. For an event to qualify, the requisites generally are: the cause must be independent of the debtor's will; the event must be unforeseeable or unavoidable; it must render it impossible for the debtor to fulfill the obligation in a normal manner; and the debtor must be free from any participation in, or aggravation of, the injury to the creditor. There are important exceptions where the debtor remains liable despite a fortuitous event: when the law expressly so provides; when it is stipulated in the contract; when the nature of the obligation requires the assumption of risk; when the debtor is already in delay (mora) or has otherwise committed a breach; and in specific cases the Code enumerates (such as the obligation to deliver a determinate thing arising from a crime). So force majeure is a defense only when the debtor is truly without fault and the strict requisites are met.
What a Fortuitous Event Is
A fortuitous event (force majeure) is one that could not be foreseen, or though foreseen was inevitable. Generally, no one is liable for such events.
The Requisites
- The cause is independent of the debtor's will;
- The event is unforeseeable or unavoidable;
- It makes fulfillment impossible in a normal manner; and
- The debtor is free from participation in the injury.
The Exceptions
The debtor remains liable despite a fortuitous event when: the law or the contract so provides; the nature of the obligation requires assuming the risk; the debtor is already in delay or in breach; or in specific Code cases.
Practical Takeaways
- A genuine fortuitous event generally excuses non-performance;
- It requires unforeseeability/inevitability and the debtor being without fault;
- Liability survives if stipulated, if the debtor is in delay, or in specific cases.
Frequently Asked Questions
What is a fortuitous event? An event that could not be foreseen, or which though foreseen was inevitable, also called force majeure or an act of God. A debtor is generally excused from liability when a genuine fortuitous event prevents performance.
What are the requisites of a fortuitous event? The cause must be independent of the debtor's will, the event unforeseeable or unavoidable, it must make performance impossible in a normal manner, and the debtor must be free from any participation in the injury.
When is a debtor still liable despite a fortuitous event? When the law or the contract so provides, when the nature of the obligation requires assuming the risk, when the debtor is already in delay or in breach, and in specific cases the Code enumerates.
Can force majeure be a defense if I was already in delay? No. If the debtor is already in delay (mora) or has otherwise committed a breach when the fortuitous event occurs, they remain liable despite the event.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
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