Caso fortuito e força maior: limites funcionais e contratualização

Abstract

Considering the methodology of civil-constitutional law, the scope of this work is to study the contractualization of unforeseeable circumstances or force majeure, through the agreement of clauses through which the debtor assumes civil liability for the risks arising from events qualified as fortuitous events or cases of force majeure, as well as their functional control and their merit of protection. Given the scenario outlined, it is accepted that, through the clause, one of the parties assumes the risk of the impossibility of the provision-object or even the provisionutility, of the structural impossibility or of the functionally definitive and total impossibility, caused by irresistible and inevitable event. For this study, as premises for the final objective of the present work, the study of the institutes of unforeseeable circumstances and force majeure is addressed, from a structural and functional perspective, given the concept of degree of impossibility arising from unforeseeable circumstances or force majeure. and the analysis of its characterizing elements considering the factual circumstances. Thus, the present work deals with the functional control of clauses that aggravate civil liability in the face of the assumption, by the debtor, of the risks arising from fortuitous events or force majeure, as well as the functional limits of the fortuitous act itself, starting from the premise of that no fact is, ontologically, a fortuitous case or force majeure, facing the always complex qualification of the event as capable of breaking the causal link, examining its constituent elements. Using the legaltheoretical method, based on doctrinal and jurisprudential research, the study of the topic is covered, starting from a qualitative-functional examination, also addressing the (in)applicability of the clauses that attribute to the debtor the responsibility arising from unforeseeable circumstances or force majeure in adhesion contracts and in parity relationships.