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Effect of Force Majeure or Act of God Essay

If upon the happening of a fortuitous event or an act of God, there concurs a corresponding fraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation as provided for in Article 1170 of the Civil Code, which results in loss or damage, the obligor cannot escape liability. It has been held that when the negligence of a person concurs with an act of God in producing a loss, such person is not exempt from liability by showing that the immediate cause of the damage was the act of God. To be exempt from liability for loss because of an act of God, he must be free from any previous negligence or misconduct by which that loss or damage may have been occasioned. Fortuitous Event – an event which could not be foreseen, or which, though foreseen is inevitable.

Essential Characteristics of a Fortuitous Event

1. Cause is independent on the will of the debtor; 2. Impossibility of foreseeing or impossibility of avoiding it to be foreseen even if foreseen; 3. Occurrence renders it impossible for debtor to fulfill his obligation in a normal manner; and 4. Debtor is free from any participation in the aggravation of the injury to the creditor. General Rule: No liability in case of fortuitous event

Exceptions:

1. By contrary stipulation in the contract; 2. Declared by law e.g. Art 552(2), 1268, 1942, 2147, 2148, 2159 of the New Civil Code; 3. Nature of the obligation requires assumption of risk when expressly declared by law; 4. When the obligor is in default or has promised to deliver the same thing to 2 or more persons who do not have the same interests (Art. 1165 (3)) Art. 1174. 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.

If the performance of this Agreement, or any obligations hereunder is prevented, restricted, or interfered with by reason of: fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labor disputes; war or other violence; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such cause of non performance and shall resume performance hereunder with dispatch whenever such causes are removed.


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