Law and regulation of force majeure in Colombia

1. Is there legislation on force majeure in your law system?

Yes, Colombian legislation deals with the two concepts of force majeure and fortuitous events together. These are one of the three limitations on liability set out in Colombian law, jurisprudence and legal doctrine. Force majeure was legally defined at an early stage in Article 64 1 It is called force majeure or fortuitous, the unforeseen which it is not possible to resist, such as a shipwreck, an earthquake, enemy capture, government acts/orders exercised by public officials etc…  of the Colombian Civil Code. However, this Article was later modified and subrogated by Article 1 of the Law 95 of 1890. 

Following significant jurisprudence on the subject, it has now been established that, in order for force majeure to operate as a limitation of liability, three criteria must be satisfied:

  1. the event must be external
  2. the event must be unpredictable; and
  3. the event must be irresistible. 2 Colombian Council of State. Third Section. 15t od June of 2000. File No. 12423  

Unlike fortuitous events, which must be absolutely unpredictable according to Colombian jurisprudence, force majeure events are synonymous with “unknown causes”.

There is no difference between force majeure and fortuitous event in the Colombian Civil Code. However, the Colombian Supreme Court of Justice and the Council of State have tried to distinguish between the two, as follows:

“[a force majeure event is] an event that is unknown, unpredictable and irresistible that is external to the activity or service that caused the damaged; and is therefore not causally related to any part of the Agreement (earthquake, inundation, mudflow). On the other hand, a fortuitous event, unlike force majeure, though also irresistible, arises from the structure of the activity forming the relevant part of the Agreement,  so it is not necessarily unpredictable(for example, when a tire of a car breaks, when government authorities issue orders or acts, or when enemies are arrested" 3 Council of State, Third Section. Sentence of the 27 of July of 200. File No. 12099 .

In accordance with Colombian legislation, force majeure is a general fact that affects a whole population and which is external to the parties – this is distinguished from a fortuitous event, which consists of a particular event that, despite being irresistible, only affects one of the parties and its economic development.

If all of the criteria of either force majeure or fortuitous event are satisfied, each will operate as a limitation of liability. The main effect of this limitation of liability is that i) the obligations of the parties will cease to exist and ii) liability for any of the parties to the agreement will be excluded. 4 Concept of the Consultation Room of the Colombian Council of State No. 2278 of 2016. Pg. 8  

2. If so, what is the text of the force majeure clause in your civil code?

Article 64 of the Colombian Civil Code states:

Force majeure or fortuitous event is an event that is unforeseen or impossible to resist, such as a shipwreck, an earthquake, enemy arrest, government acts exercised by public officials, etc. 5 The article of the civil code was repealed by article 1. of Law 95 of 1890.

3. Is this mandatory or are parties free to regulate force majeure clauses?

Colombian legislation has a developed regime on limitation of liability clauses. 6 There are limitations of liability clauses widely admitted by Colombian judges as those that determine quantum or a maximum amount for damages in case of valid breach of the contract or any of its obligations; or those that established a specific modality for that damage. (Judgement C-309 of 1996, C-663 of 1996, C-448 of 2002, C-1008 of 2010 of the Constitutional Court).

Freedom of contract underpins Colombian civil law. The Code expressly authorizes contracting parties to modify the liability regime applicable to their businesses. However, this freedom is not absolute, and must always be subject to general limits on contractual autonomy, especially public order, good custom and good faith 7 F. Hinestrosa. "Function, limits and burdens of private autonomy", in Studies of private law, Bogotá, 1986, pp. 17 ss. .

In this regard, Article 1732 of the Colombian Civil Code states:

If the debtor has become responsible for any fortuitous case, or any in particular, the agreed will be observed

Colombian legislation therefore allows the parties to regulate certain fortuitous events at their discretion 8 Diaz, Indira. Limits to the modifying clauses of responsibility in the modern law of contracts. Externado University. Year 2012. .

Also, Colombian Jurisprudence sets out the following definition of party autonomy: “the ability of the parties which is recognized by the legal system which enables the parties to dispose of their interests with a binding effect so that they may create their own rights and obligations, within the general limits of public order, good custom and good faith for the exchange of goods and services. 9 Colombian Constitutional Court. Sentence C – 934 of 2013.   

Therefore, Colombian judges accept, based on the principle of party autonomy, that the parties to an agreement have the ability, at their own discretion, to regulate force majeure or fortuitous events.

However, parties must respect the spirit of the norm and understand that the Colombian legislature views force majeure as any unforeseeable event external to the parties. Consequently, a judge would examine on a case-by-case basis whether the events agreed by the parties satisfy the relevant criteria 10 Supreme Court of Justice. Carlos Ignacio Jaramillo, 26 de abril de 2005. File No. 0829-92

The Courts will always deem that a clause excluding liability for breaches arising from willful intent is invalid, as this is strictly forbidden under the Code. 11 Under Article 1522 of the Colombian Civil Code, the forgiveness of future willful intent is not admissible.   

4. If it is regulatory, to what extent are parties free to regulate such clauses (e.g. do parties have to take principles of reasonableness and fairness into account) and if so, in what way?

According to Colombian legislation, the parties must respect:

  1.  the principles of public order, good custom and good faith; and
  2. the principle that a party cannot limit liability for future acts stemming from willful intent and serious fault.

If the above is not respected, the clause would be indisputably void under the law 12 1535 and 1522 Colombian Civil Code. . If the parties expressly provided that the compensation of a debtor would be decreased in the event of willful intent or serious fault, this would be valid in principle unless it failed to satisfy principles 1 and 2, above.

5. If a contract just says you can terminate for “force majeure” is there any guidance/case law as to what this means (in the absence of it being defined in the relevant contract)?

No - jurisprudence has clearly pointed out that force majeure it not a mechanical classification of events or occurrences, and that the parties to any agreement must qualify what constitutes an event of force majeure. 13 Supreme Court of Justice. Carlos Ignacio Jaramillo, 26 de abril de 2005. File No. 0829-92  

This does not mean that any unpredictable fact develops into an event of force majeure case - it must still satisfy the relevant criteria, which will be assessed by judges on a case-by-case basis.  Only then can a contract be terminated for force majeure. 

Given that a force majeure event must be unpredictable and irresistible, it is impossible to make a catalogue of events that “ex ante” specifies the events that constitute force majeure. 14 Ibidem.   

To conclude, if the parties agree that a contract can terminate for force majeure, Colombian jurisprudence dictates that the force majeure event must be analysed in each case according to the specific facts at issue.  

6. Is there a difference in all of this in B2B transactions versus B2C transactions?

In Colombia, force majeure is set out in Article 64 of the Civil Code, and therefore applies equally in B2B and B2C transactions. Therefore, all clauses include in these two types of transactions must respect:

  1. the principles of public order, good custom and good faith; and
  2. the principle that a party cannot limit liability for future acts stemming from willful intent and serious fault.

However, there is a third requirement for B2C transactions, which is that they must avoid the inclusion of abusive clauses. B2C transactions are subject to special regulations designed to protect the consumer. As Colombian legislation authorizes the parties to contractually limit their liability, these clauses could be considered abusive in a consumer agreement.   In Colombia, the consumer protection law (law 1480 of 2011) sets out special regulations for abusive clauses. 15 Ibidem. Title III.

“Abusive clauses” are defined as those that produce an unjustified imbalance to the detriment of the consumer and those that, under the same conditions, affect the time, place and form according to which the consumer can exercise its legal rights. In order to establish the nature and magnitude of the imbalance, the courts will examine the specific circumstances of each case/transaction at issue. 

There is an express prohibition on the inclusion of abusive clauses in contracts under Article 42 (1480/2011 law). Also, it is important to note that, under Article 43 # 1, an abusive clause which limits the liability of a producer or supplier of an obligation to which it is bound by law will be automatically deemed ineffective. 

In accordance with the above, Article 897 of the Colombian Commercial Code states that when an act fails to produce effects, it will be considered null and void in its own right, without the need for judicial intervention.

Likewise, Colombian jurisprudence holds that abusive clauses will be null and void. 16 Supreme Court of Justice. Sentence SC3201-2018. 9 of August of 2018. Salazar Ramírez Ariel.  

7. Is there a difference in judgement when the force majeure clause is laid down in a contract or in T&C’s?

T&Cs in Colombia can form part of any agreement; however, they are generally not negotiated in cases involving the distribution of mass-produced products (i.e. contracts of adhesion). 17 Monroy Rodríguez Juan Carlos. Cuestiones Jurídicas en torno a los contratos de desarrollo y licencia de software. November 2012.  

Where they concern dealings with consumers, contracts of adhesion are regulated under the Consumer Statute. Article 37 of 1480/2011 law states that such terms and conditions must:

  1. be correctly communicated to the consumer, sufficiently, in advance and expressly;
  2. be concrete, clear and complete; and 
  3. in the case of written contract, must be legible.

Under Colombian legislation, therefore, given that the terms and conditions form part of the overall agreement, there is no difference in judgement when the force majeure clause is laid down in a contract or in T&Cs, because any clause that is found in the T&Cs will be understood by the judge as being an integral part of the contract itself. 

In the same way, if there is an abusive clause in T&Cs, it will be assessed as if it were in the agreement itself. Any clause understood as an abusive clause will be null and void, meaning that will not produce any legal effects, no matter if it is set out in the T&Cs or in the agreement itself. 

8. Do you have examples of force majeure clauses which you think (would) work well in practice?

  • Both parties will be exempt from liability if damages occur in cases of force majeure such as: natural catastrophes, floods, strikes, total or partial lack of energy, as well as any other circumstance whose control does not depend on the parties.
  • For the purposes of this contract, Force Majeure is the unforeseen event that cannot be resisted, such as, an act of authority, a shipwreck or an earthquake, etc. For the purposes of this contract, Force Majeure is considered exempt from liability and will suspend the fulfillment of the obligations affected by these circumstances, as long as it constitutes a strange cause and the Party receiving the notice accepts the character of irresistible and impediment of the fact alleged.
  • THE CONTRACTED and THE CONTRACTING PARTY will be exempt from responsibility in the fulfillment of the terms set forth in this Contract, whenever they are prevented by causes attributed to force majeure.
  • When there is a case of force majeure, and within the period of 3 (three) calendar days, the affected party must notify the other, providing the corresponding grounds and evidence, unless there are serious impediments to it.

However, these clauses are simply examples of model clauses. In order to determine if a clause works well in a particular agreement, it must be analysed in light of the circumstances of the individual case at issue.

9. Do you (already) have an example of a force majeure clause which is “corona future proof” or “virus proof” and you willing to share that with us?


Currently, we do not have a force majeure clause that is “corona future proof” considering that COVID–19 is still a recent occurrence in Colombia. 

The Ministry of Labor has said on several occasions in press conferences that the pandemic situation caused by COVID–19: “is not a case of force majeure to make collective dismissals (…)” 

However, the Ministry of Labor has also stated that it will be for Colombian judges to determine whether COVD-19 qualifies as a force majeure event. 18 Ministry of Labor. 19 of March 2020. External Circular No. 0022.

It is also important to bear in mind that despite the extraordinary situation that we are living through in Colombia, different types of labor agreements will need to be examined in context to determine whether a force majeure event will apply in each case.       

The Colombian Constitutional Court recently set that the article 64 of the Colombian Civil Code (Force Majeure clause regulation) could not be interpreted as a rigid regulation due to it does not directly set forth which are the specific events for this regulation to apply. According to this interpretation, the Colombian Constitutional Court reiterated that any situation related to Force Majeure must be examined in each concrete case. 19 Colombian Constitutional Court. Judgement No. 157/2020. June 3, 2020. Diana Fajardo Rivera.

10. Are there any alternative remedies that a party could consider based on being unable to perform a contract due to the corona virus?

In Colombian legislation, there are three ways to limit liability under contract:

  • Force majeure or fortuitous event: These events might result in a total or partial exclusion of liability depending on the parties’ behavior and degree of participation in the damage. Though it has been said that force majeure has total exonerative effects, doctrine provides that "... it may be surprising that force majeure may have a partial exonerative effect. This is illustrated by the fact that the damaging consequences of an event of force majeure are aggravated by the defendant. For example, where harmful consequences arising from heavy rainfall have been aggravated by inherent defects in the works 20 French Council of State, December 12, 1956, Commune of Villeneuve - Luobet, p. 474 .
  • Third-party fault: This ground for exoneration is based on the assumption that the direct cause of the damage stems from the actions of a third party. For a third party to exonerate the parties from liability, the following criteria must be satisfied:
    • the event must be the sole cause of the damage; and
    • the event must be unforeseeable and irresistible.

If the actions of one of the parties to the contract also caused damage in addition to the actions of the third party, they may be jointly liable under Article 2344 of the Civil Code.

  • Victim fault: This principle holds that those who contribute to fault through their acts or omissions (or through the acceptance of the acts/omissions of others) must assume liability for the aggravation of the damage suffered.

Article 2357 of the Civil Code states:

"The appreciation of damage may be reduced if the person who suffered it was exposed to it recklessly"

The courts have found that, where a victim contributes to the causation of damage in accordance with the above, liability for said damage tends to be minimal. 21 State Council, Judgment of February 24, 2005  

  • Unforeseen Theory (“Teoría de la imprevisión”): This theory sets that when an extraordinary, unpredictable, or unforeseen situation overcomes after the subscription of an agreement, and this situation affects the future compliance of what is set forth in this agreement, it is possible due the specific situation for the parties to solicit before a judge the revision of the agreement in order to modify it in the specific aspect that might end being excessively onerous for one of the agreement parties. 

It is regulated in Article 868 of the Commercial Code: “When extraordinary, unforeseen or unforeseeable circumstances overcomes after the subscription of an agreement of successive, periodic or deferred execution, alter or aggravate the set forth provisions of the future compliance of one of the parties in a way that results excessively onerous, it is possible for this part to ask for its revision. The judge will proceed to examinate the specific circumstances that have altered the set forth basis of the agreement and, if possible, will order its modification on an equality basis, on the contrary will order its termination. This rule will not apply for aleatory or instant execution agreements”   

The Colombian courts have stablished that it is necessary the existence of an evident unbalance and this must coalify as certain, major, fundamental, or significant unbalance that will generate an excessively onerous obligation to one of the agreement parties caused by the unpredictable situation. 22 Supreme Court of Justice. Sentence No. 2006-00537-01, February 21, 2012. William Namén Vargas  

11. Is there anything else we should know or you would like to share on this topic?

N/A

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Carolina Arenas