Colombia: Force Majeure - Hardship in relation to Conflict and Sanctions

In the Colombian Penal Code, there is a section named “On goods and persons protected by International Humanitarian Law”. Also, Colombia has ratified the Geneva Convention and its additional protocols. Nonetheless, this refers only to penal sanctions and not civil sanctions. 

There are no specific rules in the Colombian Civil Code relating to war, although the force majeure civil rule provides the following:

“ARTICLE 64. Force majeure or fortuitous event is the unforeseen event or the event that it is not possible to resist, such as a shipwreck, an earthquake, the capture of enemies, acts of authority exercised by a public official, etc.”

As stated by the Constitutional Court of Colombia (Sentence SU599/19) that war is considered as a force majeure event. 

Thus, if one of the parties is unable to comply its obligations due to force majeure, Colombian law provides the extinction of said obligations, due to the the impossibility to fulfil them (Art. 1604). Only if the force majeure event happened while the debtor was in default would the debtor have to pay or compensate the other party. 

Yes, according to the aforementioned article 64 of the Civil Code and article 868 of the Commercial Code, war or similar unforeseen events could constitute force majeure. 

The Colombian legal system addresses force majeure under statutory law. Nevertheless, in practice it is always better to include a clause in the contract, which defines the events that are considered as force majeure by the parties, and the consequences. This could reduce the uncertainty in case the parties do not agree, and the matter must be resolved by a judge/arbitrator. 

According to the Colombian Supreme Court of Justice (Sentence SC16932-2015), force majeure is: 

“An unforeseen event that cannot be resisted (art. 64 CC, sub. art. Io Law 95 of 1890), meaning an event, which under normal conditions cannot be predicted is impossible to avoid, so that the party who suffers it cannot escape its effects.”

Also, the theory of unforeseen events refers to the scenario when extraordinary, unforeseen, or unforeseeable circumstances, after the termination of a contract of successive, periodic or deferred execution, alter or aggravate the provision of future compliance by one of the parties, to the extent that it is excessively onerous. In this event, this party may request the review of the contract. The
Law (art. 868 Colombian Commercial Code) orders the judge to proceed and “examine the circumstances that have altered the bases of the contract and to order, if possible, the readjustments necessary to restore economic balance to the contract; otherwise, the judge will order the termination of the contract”.

Not applicable. 

According to the Constitution (art. 212), in the event of war, the existence of a public danger or any another emergency that generates an imminent threat to the sovereignty, independence or security of the state, the government may adopt provisions that, to the extent and for a period strictly determined by the requirements of the situation, allow it to repel the aggression and restore security in the affected area. Provided only that such provisions are not incompatible with the fundamental rights of citizens and international norms. For that reason, it is not unlikely that under this special framework, the government could issue regulations in this regard.

Even though force majeure and fortuitous events are addressed by Colombian Statutory Law, including war events, it is advisable to include a specific clause regulating what constitutes an unforeseen event to broaden the applicable spectrum of possible events under which noncompliance is not enforceable. Not doing so may leave the interpretation of the unforeseen event to a judge, which can result in unexpected results.