Covid19 and Force Majeure

Covid19 and Force Majeure in Transportation Law. New Challenges from a Brazilian Perspective

Firstly, the nomenclature “extrinsic force majeure” is considered to be more accurate in the framework of transportation contracts, as it is consistent with the precepts of articles 734, 737 and 753 of the Brazilian Civil Code. The characterization of force majeure, comprised by the aspects of extrinsicality, unavoidability, irresistibility and uncontrollability, places the party in a situation of impossibility, by directly portraying the phenomenology in question, transforming the vis into vis major.

According to these premises, from an evolutionary perspective, the empirical verification of vis major and casus must be highlighted, starting in the early days of Homo sapiens. The analysis goes on through Antiquity, a period which reveals the prevalence of a fatalistic, mystical and religious perspective, and portrays a close link between climatology and mythology, without any preventive mechanisms. 

Along this path, the subsequent evolution of civil liability and its strict liability system emerge as driving force for the modification of the status quo, the analysis of risk, in a prospective aspect, and the Machine Age, precisely standing out in the latter the branch of transportation as one of its bastions, in addition to the advent of risk theory. In this scenario, the preventive function of civil liability is promoted. The requirements of the configuration of fortuitous event and force majeure must be kept in mind as well. 

In the context of the new paradigms, the relevance of the contemporary vision of obligation as a complex legal relationship and as a process must be added. Its related bundle of rights and duties transcends the fulfillment of the travel obligation originally contracted, inherent to transportation contracts. The travel obligation, in comparison with the covenant of objective good faith and fair dealing, gives rise to lateral duties and to the so-called obligation of protection. Both may persist, per se, and their non-performance may characterize a type of default, even in the face of a supervening impossibility to continue the performance of a transportation contract. 

In this regard, a distinction must be made between contracts concerning transportation of persons or goods, since, in the archetype of “existential contracts”, social principles show a greater density in comparison with private autonomy, a situation not applicable in the framework of the transportation of goods, in which an effective analysis of the assumption of risks within the scope of the contract and related clauses (e.g., force majeure clauses) is possible, elements which are inherent to contractual and profit-based inter-company legal business transactions. 

Examples of lateral duties of the obligation of protection are the duty to protect and inform, whose strength is increased in the context of the so-called “existential contracts”, usually involving consumers. However, consumers are also required to observe the tenants of objective good faith in their own conduct. In this sense, the duty to mitigate the loss can apply not only to travel agencies, cruising companies, but also to the victim in situations which may characterize extrinsic force majeure.

Following these digressions, from the perspective hence assumed it results that the extrinsic force majeure can be understood, at the same time, as an unavoidable, irresistible, extrinsic fact, as well as a consequence, unconnected to the organization’s or to the outsourced company’s affair towards the debtor. 

Therefore, for the configuration of the extrinsic force majeure it must be required, despite the predictability or unpredictability of the harmful event, the verification of inevitability within the period prior to its occurrence, even with the use of appropriate techniques and precautionary and preventive measures, as well as the irresistibility during the event and, finally, the impossibility of fulfilling the obligation after the harmful event, which then becomes unenforceable. 

These elements must be weighed in the light of the state of the technique and reasonableness, promoting prevention mechanisms. Such fundamental premises are recognized in the plexus of the new challenges presented by the 21st era of knowledge, since the twilight of the extrinsic force majeure is not anticipated, nor have we come to the end of history.

Keywords: Extrinsic force majeure. Evolution of civil liability. Objective good faith. Transportation of persons. Transportation of goods. COVID- 19. New Challenges. 

Marco Fabio Morsello

Associate Professor of Private Law (USP- São Paulo State University). Judge at São Paulo State Court of Appeals. 

32nd IFTTA International Conference/Sao Paulo/Brazil/2021