Fortuitous event and force majeure contours in Brazilian civil law and the United Nations Convention on Contracts for the International Sale of Goods (CISG)

Abstract

Based on the methodology of civil-constitutional law, this paper aims to study the concepts of fortuitous and force majeure from a structural and functional perspective, analyzing their constituent elements under the factual circumstances. The aim is to outline a brief overview of unforeseeable circumstances and force majeure in Brazilian civil law, as enshrined in Article 393 of the Civil Code, and subsequently compare them with the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG), specifically Article 79 thereof, which establishes the grounds for exoneration of the debtor's liability. Thus, this paper proposes an analysis and comparison of the constituent elements of unforeseeable circumstances and force majeure in Brazilian law and their functional equivalent in the CISG at the international level, drawing on relevant international case law and adhering to the principle that the interpretive “lenses” applied to the Convention must remain independent from those used in domestic law.