Law and regulation of force majeure in Peru

Yes, there is legislation on force majeure in Peru.

The general definition of “force majeure” is set out in Article 1315 of the Peruvian Civil Code, as follows: “Force majeure is a non-attributable cause, consisting of an extraordinary, irresistible, and unforeseeable event, that prevents performance of an obligation or determines its partial, late or defective performance.”

Article 1315 of Peruvian Civil Code is suppletory by nature - parties have the capacity to not only negotiate the definition of a “force majeure event”, but also to regulate the consequences of force majeure (i.e. the assumption of partial or total responsibility for the non-performance of an obligation). 

The only restriction on the ability of the parties to freely regulate force majeure under their contracts is that the force majeure event must be a situation that is beyond the control of the parties or external to them. If this is not the case, the parties may be seen to be regulating limitation on liability instead, which is only possible under Peruvian law under certain circumstances.

Where a contract does not contain a definition of “force majeure”, Article 1315 of the Peruvian Civil Code will apply.

The definition of “force majeure” set out above applies equally to B2B and B2C transactions.

No, the concept of force majeure applies equally to any kind of obligation, whether the obligation is provided for in a contract or is part of an agreement incorporating T&Cs.

In practice, the content of a force majeure clause (and the definition of “force majeure event”) depends on the interests of the parties and the specific circumstances surrounding the contract at issue. In any event, the parties’ force majeure clause must be respected as legally binding.

N/A

Based on the fact that a force majeure event prevents the performance of an obligation such that the agreement may need to be terminated, the parties may resort to a less drastic remedy, such as the suspension of the agreement for a period of time, following which, if the event subsists, the agreement may then be terminated.

It is worth mentioning that it is important to distinguish between the Coronavirus pandemic on the one hand (and whether it will affect the performance of a contractual obligation) and the consequences of the pandemic on the other hand (which could include government lockdowns and closed borders that could equally affect contractual performance).