Force Majeure: When You Are Not Liable for Delay or Loss
Quick answer
A fortuitous event (also called force majeure or caso fortuito) is an event that could not be foreseen, or that was foreseen but could not be avoided. Under Article 1174 of the Civil Code, no one is liable for delay or loss caused by such an event, unless the law, the contract or the nature of the obligation puts the risk on him. The person who claims it must prove it, and it does not help someone whose own negligence contributed to the loss.
What does Article 1174 say?
Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable.
So there are three exceptions in which a person is liable even for a fortuitous event:
- The law expressly says so.
- The contract says so (a stipulation that one party bears the risk).
- The nature of the obligation requires assuming the risk.
What makes an event a fortuitous event?
The Supreme Court has set four tests. In Sicam v. Jorge (2007), it said these elements must concur:
- the cause of the event, or of the failure to perform, is independent of human will;
- it was impossible to foresee, or if it could be foreseen, it was impossible to avoid;
- it made it impossible for the debtor to fulfill the obligation in a normal manner; and
- the debtor did not take part in making the injury or loss worse.
The Court added that "The burden of proving that the loss was due to a fortuitous event rests on him who invokes it." And the person must have "committed no negligence or misconduct that may have occasioned the loss."
The term is also explained in fortuitous event.
Is a robbery or theft a fortuitous event?
Not by itself. In Sicam, a pawnshop said it was not liable for pawned jewelry taken in a robbery. The Court said: "Robbery per se, just like carnapping, is not a fortuitous event." On the facts, the vault had been left open, and the Court held the pawnshop still liable to the owners.
This page does not say whether any particular typhoon, flood, lockdown or other event is a fortuitous event. That depends on the four tests and on the evidence in each case.
What happens to an obligation to deliver a specific thing?
Article 1262 says that an obligation to deliver a determinate (specific) thing is extinguished if the thing is lost or destroyed "without the fault of the debtor, and before he has incurred in delay." But when the law or the contract makes the debtor liable even for fortuitous events, or the nature of the obligation requires assuming the risk, the loss does not end the obligation and the debtor is liable for damages.
Being late matters. Article 1165 says that if the debtor delays, he is responsible for any fortuitous event until he has made the delivery.
How does this work in real life?
These are made-up examples to show how the rules work. They are not advice for any real case.
Lito agreed to deliver a specific set of furniture to Ana next week. A typhoon floods his warehouse, which was built and kept with ordinary care, and destroys the set before the delivery date. If the four tests are met and the contract does not put the risk on Lito, he may invoke Article 1174 and Article 1262.
Same facts, but Lito was already two weeks late when the typhoon hit. Under Articles 1165 and 1262, he cannot rely on the typhoon to escape liability.
A pawnshop leaves its vault open and is robbed. As in Sicam, the robbery alone does not free the pawnshop from liability.
When do you need a lawyer?
Talk to a lawyer if you want to invoke force majeure to explain a delay or a loss, or if the other party invokes it against you. A stipulation in the contract can change the rule (Article 1174). The outcome depends on the facts and on what each side can prove.
If you cannot afford a lawyer, see Free legal help in the Philippines. The full text is on the Article 1174 page.
Which provisions does this answer rest on?
Which Supreme Court rulings are relevant?
Frequently asked questions
What is a fortuitous event?
It is an event that could not be foreseen, or that could be foreseen but was inevitable. Article 1174 of the Civil Code says no person is responsible for such events, with three exceptions.
What are the exceptions?
Article 1174 makes a person liable even for fortuitous events when the law expressly says so, when the contract says so, or when the nature of the obligation requires the assumption of risk.
Is a typhoon automatically a fortuitous event?
Not automatically. In Sicam v. Jorge (2007), the Supreme Court said the event must be independent of human will, impossible to foresee or avoid, make normal performance impossible, and the person must not have contributed to the loss. Negligence defeats the defense.
Is a robbery a fortuitous event?
Not by itself. In Sicam, the Court said robbery per se, like carnapping, is not a fortuitous event, and held a pawnshop liable for pawned jewelry taken in a robbery.
Who must prove the fortuitous event?
The person who invokes it. In Sicam, the Court said the burden of proving that the loss was due to a fortuitous event rests on the one who claims it.
What if I was already late when the disaster happened?
Then the defense may fail. Article 1262 extinguishes an obligation to deliver a specific thing only if it was lost without the debtor's fault and before he incurred in delay. Article 1165 makes a debtor in delay responsible for fortuitous events until delivery.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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