Force Majeure and Acts of God: When a Party Is Released From Performing a Contract

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Unforeseeable and unavoidable events can suspend, terminate, or require the revision of contractual obligations. Understanding when a pandemic, a flood, or a government decision amounts to force majeure or an act of God, and what that means for performing the contract, has become a central question in modern civil practice.

Force Majeure and Acts of God: The Distinction and the Effects on Obligations

Brazil’s Civil Code addresses the subject in Article 393, which provides that a debtor is not liable for losses resulting from an act of God (caso fortuito) or force majeure (força maior), unless the debtor expressly agreed to bear them. The sole paragraph defines the phenomenon as a necessary event whose effects could not have been avoided or prevented. The practical consequence is straightforward: once the event is proven, the duty to pay damages for nonperformance falls away.

Legal scholars usually distinguish between the two concepts. An act of God is said to involve natural events or unforeseeable internal occurrences, while force majeure arises from human acts or irresistible external facts, such as orders from a public authority. For legal purposes, however, the distinction has limited effect, since the law gives both the same result: the debtor who was unable to perform is relieved of liability.

More important than classifying the event is checking whether it meets the legal requirements. Court decisions require that the event occur after the contract was made, be unrelated to the conduct of the parties, and be capable of making performance impossible or disproportionately burdensome. Without that showing, a generic reference to an extraordinary occurrence is not enough to excuse someone who failed to do what they promised.

Unavoidability and Unforeseeability: The Requirements That Remove Liability

The core of the doctrine lies in the combination of two elements. Unforeseeability means that the event could not have been anticipated when the contract was made, judged by a reasonable standard. Unavoidability means that the effects of the event could not be resisted, even if it could, in theory, have been foreseen. Some events are foreseeable yet have effects that cannot be resisted, and the law places the greatest weight on whether the outcome was unavoidable.

This point separates a sound claim from an attempt to escape a commitment. Ordinary economic hardship, routine market swings, and the debtor’s own earlier delay do not qualify as force majeure. The event must break the normal course of things and fall outside the control of the person invoking it; otherwise, any adversity would become an excuse for default.

The causal link is also decisive. It is not enough that the event occurred; it must be the direct cause of the inability to perform. If the debtor was already in default before the event, the debtor remains liable for the losses under Article 399 of the Civil Code, which keeps a debtor in delay responsible even when a later event intervenes, unless the debtor proves that the damage would have occurred anyway.

The party making the claim bears the burden of proving the event and its concrete effect on the obligation. A bare reference to unfavorable circumstances, without documentation linking the event to the failed performance, is usually rejected by the courts, which examine case by case how far the event actually affected the subject of the contract.

The practical consequence is straightforward: once the event is proven, the duty to pay damages for nonperformance falls away.

Revision and Termination of the Contract for Excessive Burden

Not every unforeseeable event makes performance impossible. Often performance remains feasible but becomes excessively burdensome for one of the parties. For those situations, Brazilian law offers the theory of unforeseeability (teoria da imprevisão), set out in Articles 478 to 480 of the Civil Code, which govern the termination and revision of contracts performed over time or at a later date.

Article 478 allows the debtor to seek termination when performance becomes excessively burdensome, with extreme advantage to the other party, because of extraordinary and unforeseeable events. Under Article 479, the defendant may avoid termination by offering to modify the terms on equitable grounds, which reflects the principle of preserving the contract. Article 480 also allows performance to be reduced, or the manner of performing it to be changed, when the obligations fall on only one of the parties.

The difference between the two regimes matters for litigation strategy. Force majeure under Article 393 applies when performance becomes impossible, and it releases the debtor. Excessive burden under Articles 478 and following assumes that performance is still possible but out of balance, and it seeks to restore the original reciprocity of the bargain through revision or, as a last resort, termination. Choosing the right basis avoids contradictory requests and strengthens the argument.

The requirements for revision are demanding. They call for a contract performed in continuing installments or at a later date, an extraordinary and unforeseeable event, and a significant imbalance between the parties’ obligations that benefits the other side. The normal risk of any business deal, risks the parties knowingly accepted, and contracts that are inherently speculative (contratos aleatórios) generally fall outside the reach of the theory, which protects a balance broken by an abnormal event, not regret over a bad bargain.

The higher courts stress that judicial intervention in a contract is exceptional. The courts do not replace the will of the parties or correct foreseeable unfavorable outcomes. Revision presupposes the collapse of the objective basis of the deal, meaning the circumstances that supported the balance between the parties’ obligations when the contract was made, and it requires strong proof of that collapse.

Drafting the Clauses and Preventing Disputes

Much of the uncertainty around this topic comes from poorly drafted clauses. Contracts that merely repeat the statutory formula for force majeure, without spelling out scenarios, procedures, and consequences, leave it to a judge to decide what the parties should have anticipated. Careful drafting reduces disputes and makes the relationship more predictable.

It is advisable to define, by way of example rather than as an exhaustive list, the events the parties consider force majeure, expressly covering natural events, acts of authority, and significant supply interruptions. It is also wise to establish a duty to give immediate notice of the event, the deadline for doing so, the obligation to mitigate losses, and the procedure for suspending and resuming the affected obligations, with clear effects on deadlines and penalties.

It is equally useful to address the allocation of risk. Within contractual freedom and respecting the social function of the contract, the parties may decide who bears certain events, exclude the theory of unforeseeability in deals between parties of equal bargaining power, or provide for automatic renegotiation when objective triggers are met. Structuring the contract this way up front is usually more efficient than fighting it out in court later.

Clear drafting also guards against overly broad interpretations. Clauses that confuse economic hardship with force majeure, or that promise revision whenever costs change at all, tend to produce disputes. Precise terminology, aligned with the legal categories, lets the contract work as a tool for security rather than a source of new conflict.

Frequently Asked Questions

Does the pandemic count as force majeure in every contract?

Not automatically. The pandemic can qualify as an extraordinary event, but you must show that it made performance impossible or upset the balance of the specific contract. In some sectors the impact was direct, while in others business continued as usual. The analysis depends on the facts of each case and on proof of the link between the event and the obligation that went unperformed.

What is the difference between seeking termination and seeking revision of a contract?

Termination seeks to end the contractual relationship when performance has become excessively burdensome, under Article 478 of the Civil Code. Revision aims to modify the terms to restore balance while preserving the deal. The other party may offer an equitable modification to avoid termination, in keeping with the preservation of the contract. The choice depends on the actual interest of the party bringing the claim.

Is a clause that lists force majeure events valid?

Yes. In exercising their contractual freedom, the parties may spell out which events they treat as force majeure and what the consequences are for deadlines and penalties, as long as good faith and the social function of the contract are respected. Such a provision adds predictability and reduces disputes, although it does not prevent judicial review in cases of abuse or clear imbalance between the contracting parties.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.