Fuerza Majeur In Chile | Law Report

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REPORT ON THE REGULATORY FRAMEWORK OF FORCE MAJEURE IN CHILEAN LEGAL SYSTEM.
© 2011 | Alejandro Meza Barros. Attorney at Law. ameza@lexnet.cl I. FOREWORD
For a better understanding of this report it is necessary to set a few definitions and enunciate the fundamental legal regulations on thesubject of the execution of the obligations of a contract along with the application of those norms at the judiciary and academic level. Chilean Civil Code (CCC) is the key regulatory body on this matter, namely from Articles 1554 to Article 1559 which regulates the consequences of the failure to perform any term of a contract. The provisions of the legal action to claim the fulfillment of theobligations of the counterpart are referred on Article 1489 of CCC that regulates the tacit resolution condition1 according to which the part towards whom the undertaking has not been fulfilled has the choice either to compel the other to fulfil the agreement when it is possible, or to request its avoidance with damages. According to our legal system it is understood that there is a breach of contractwhen the following elements concur: a. The contracting party did not perform his/her obligations in the manner (Article 1569) or to the extent agreed (partial performance does not imply fulfillment of the other party’s obligations. Article 1569 CCC) . b. Delayed execution.

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Equivalent to Article 1184 of the French Civil Code.

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c. Non-performance is caused by gross negligence (culpa grave) or willful misconduct (dolo). In case of a breach of contract the creditor is entitled to alternatively use one of two of remedies given by the legal system: first, and most importantly is the right of enforcement (after the claims were demonstrated in Court) and secondly, if the contractis synalagmatic the affected party could opt for the termination of the contract and demand the compensation for the damages. The non-performance is a natural consequence of the delay in performance which entitles the other party to use the right to either demand the termination or the enforcement of the obligations. The declaration in court it is necessary in order to establish the amount of thedamages. According to the Chilean legal system obligations are intended to be fulfill and namely, to be performed through the payment, which is in other words the object due to the creditor (Article 1568 CCC). The right of enforrcement action is the main action incorporated in the contract2. In conclusion, our legal system is diverse from the Common Law and also from the Continental European Law.In fact, in Comparative Law it is noticeable a growing evolution towards the protection of the creditor, and consequently to an establishment of solutions or remedies aimed at the protection of such interest. This trend inspire the Vienna Convention on Contracts for the International Sale of Goods, the BGB (German Civil Code) and Directive 99/44/CE of the European Parliament. This is the frame inwhich the breach of contract regulation is inserted in the Chilean Legal System. With this outline in mind, now we will proceed to review the case of force majeure, how it is defined in our Legal System, how it operates as a source of liberation of responsibility.

Raúl Lecaros, Civil Law Professor Universidad Católica de Chile, Former member of Chilean Supreme Court of Justice.

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II.

DEFINITION OF FORCE MAJEURE

Unlike art 1148 of the French Civil Code, the CCC in its article 45 defines force majeure as follows: art 45: “It is called force majeure or fortuitous event to the extraordinary circumstance which is not possible to resist, such as a wreckage, an earthquake,...