COVID-19 AND COMPLIANCE WITH OBLIGATIONS
By complying with obligations, we understand the achievement of facts agreed with a third party, such as, for example, the payment of a debt, carrying out any work, or complying with the conditions established in private and / or public instruments. However, when this becomes impossible due to situations, such as those we are experiencing now, such as the declaration of a state of emergency (Executive Decree 1017) under the pandemic by COVID-19, it is necessary to know what our legislation, jurisprudence and doctrine point out.
In the first place, we have article 30 of the Civil Code, which says: “It is called force majeure or fortuitous event, the unforeseen event that cannot be resisted, such as a shipwreck, an earthquake, the arrest of enemies, the acts of authority exercised by a public official, etc. ”
This article refers to the fact that a fortuitous case and force majeure are the same, however, jurisprudence and doctrine define that if it is a case of force majeure, the obligor has the power not to comply with the benefit, while if it is a fortuitous case, the obligation would subsist. To give a practical example, a fortuitous case, it was the last earthquake of April 16, 2016, since it is up to the same person, to order himself and begin to fulfill his obligations; and, force majeure, the best example, is the present case of declaration of a pandemic, since thus the obligor intends to order himself and comply, he is disabled by a government provision, as long as it affects him completely.
Likewise, it is necessary to indicate that force majeure involves unpredictability or inevitability, not leaving the fulfillment of obligations to their free will.