There is currently no information on the courts` response to disputes regarding fortuitous events or force majeure related to COVID-19. However, in the context of public procurement, the Public Procurement Surveillance Authority – OSCE (an entity affiliated with the Peruvian Ministry of Economy and Finance) issued Statement No. 005-2020-OSCE on March 25, 2020, which stated that the declaration of emergency due to COVID-19 „constitutes a situation of force majeure that may affect contractual relations, concluded in accordance with public procurement legislation. both by the contractor and by the contracting authority`. This is the only statement made by the OSCE in this regard aimed at clarifying the legal consequences of the effects of restrictions on social contacts or movements (paragraphs 2 and 3 of the declaration) on the performance of contracts subject to public procurement law. The Peruvian government`s interest in avoiding disputes became evident when it stated that due to the restriction of freedom of movement, requests for extension of deadlines or even suspension of the terms of contracts subject to such specific legislation could be made. In the event of a COVID-19 pandemic applied to public procurement, in particular with regard to hydrocarbon exploration and extraction contracts awarded and awarded by the National Hydrocarbons Commission (the „Oil Contracts“) through oil towers, the applicable legal and contractual provisions must be taken into account. Although references in the Petroleum Resources Act to acts of God or force majeure apply to licensees carrying on activities under this Act, they may be relevant to business relationships between licensees and contractors, as set out below: Understand that the debtor does not have the disease, The mere existence of COVID-19 is not sufficient to justify non-compliance with an obligation due to unforeseeable circumstances or force majeure (for example, when a risk of illness must be invoked) because certain facts have not been brought to light, which inevitably prevents the performance of an obligation. Secondly, with regard to the alternative, which is the declaration of a pandemic by the World Health Organization or an international organization, it is important to emphasize that World Health Organization resolutions are not binding according to the political constitution of the United Mexican States and the hierarchy system of laws in Mexico. because they do not constitute a constraint on Mexican territory, although they certainly imply recommendations that the Mexican State should act by an act of the Government adopting such resolutions, or by an international agreement or treaty. Another provision of the Civil Code states that a borrower who has lost a particular property due to a fortuitous event is always liable if he has used the property for a use not agreed upon by the parties. [3] A good example of this would be if I borrowed a friend`s fully restored Benz W105 to use as a bridal car for my cousin`s wedding, but instead used it for a personal date with my girlfriend.
In the event that it encounters a sudden flood during my appointment, devastating its engine and gearbox (as well as my relationship), I will still be held responsible as I have dedicated it to an unagreed use. Article 1174 of the Civil Code provides that no one is responsible for events that were not foreseeable or, although foreseeable, were unavoidable. A fortuitous event within the meaning of Article 1174 may be either a „higher act“ or natural events such as floods or typhoons, storms, earthquakes or other catastrophic events; or a „human act“ such as riots, strikes, wars, government bans, theft, etc. If the fortuitous event or force majeure is of prolonged duration and the oil activities are interrupted for an uninterrupted period of 2 years or more, the parties may agree to terminate the contract. If one of the parties does not agree to termination, the parties are subject to the dispute settlement procedures provided for in oil contracts. It should be noted that in Chile, unlike other jurisdictions, no legislation has been enacted to regulate the impact of COVID-19 and the resulting consequences for contracts, except for very specific issues such as employment. Therefore, the rules applied to settle disputes before the courts will be those agreed in the respective contracts, if any, or those established in the general civil legislation. In view of the above, in the absence of contagion, medical guidance and/or hospitalization, when the nature of a pandemic is recognized by the competent authority and restrictive measures are taken by laws, regulations or circulars making it impossible to comply with, a fortuitous event or a case of force majeure could be recognized. subject to compliance with the special provisions agreed by the parties in contractual relations.
Despite the absence of an express agreement providing for a non-excuse even in the event of a fortuitous event, there are certain obligations where this risk-taking is implicit by the nature of the obligation itself. An example of this is the common carrier`s obligation in the carriage of its passengers, where ordinary carriers, even if not provided for on the passenger`s ticket, are generally also liable for fortuitous events, unless it is proven that „extraordinary“ precautions have been taken to avoid incidents. According to settled case-law of the Supreme Court, in order to invoke an exclusion of liability due to unforeseeable circumstances within the meaning of Article 1174 of the Civil Code, a party must be the sole and immediate cause of the loss or destruction of the object of the contract. The determination of whether a particular event constitutes force majeure and whether a person is exempt from liability as a result of such an incidental event depends on the combination of all the elements of an ancillary event. The elements of a fortuitous event are as follows: The COVID-19 pandemic and the adoption of government regulations to mitigate or minimize its impact are events that did not necessarily make it impossible to perform the obligations, but could have affected the initial economic equilibrium of the contract.