A recent social media post of a certain senator concerning the concept of force majeure – suggesting that the on-going war in the Middle East, the possibility of a China-Taiwan conflict involving the Philippines, and climactic phenomena such as El Nino and La Nina could constitute force majeure and thereby justify remote participation in Senate proceedings – generated significant public debate and legal discussion.
To educate my fellow Catandunganons, I find it necessary to examine the true concept of force majeure, its requisites and application in our jurisdiction.
Force majeure, also known as fortuitous event or caso fortuito is defined as those extraordinary events that “could not be foreseen, or which, though foreseen, were inevitable.” It is, therefore, not enough that the event should not have been foreseen or anticipated, as is commonly believed, but it must be one impossible to foresee or to avoid. The mere difficulty to foresee the happening is not impossibility to foresee the same: “un hecho no constituye caso fortuito por la sola circunstancia de que su existencia haga mas dificil o mas onerosa la accion diligente del presento ofensor” (Peirano Facio, Responsibilidad Extra-contractual, p. 465; Mazeaud Trait de la Responsibilite Civil, Vol. 2, sec. 1569).
The doctrine of force majeure is primarily embodied in Article 1174 of the Civil Code of the Philippines, which provides:
Art. 1174. Except in cases 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.
A fortuitous event under Article 1174 may either be an “act of God,” or natural occurrences such as floods or typhoons, or an “act of man,” such as riots, strikes or wars.[1]
The above provision established the rule that a person is not liable for the non-performance of an obligation when such non-performance is caused by a fortuitous event. The rationale is ground upon fairness and justice. Since the event is beyond human control and could neither be prevented nor avoided, the law excuses the affected party from any liability.
To successfully invoke force majeure, the following requisites must concur:
(a) the cause of the unforeseen and unexpected occurrence, or the failure of the debtors to comply with their obligations, must have been independent of human will; (b) the event that constituted the [force majeure] must have been impossible to foresee or, if foreseeable, impossible to avoid; (c) the occurrence must have been such as to render it impossible for the debtors to fulfill their obligation in a normal manner; and (d) the obligor must have been free from any participation in the aggravation of the resulting injury to the creditor.[2]
All four requisites must concur. The absence of even one requirements prevents the successful invocation of force majeure.
When the event is found to be partly the result of a party’s participation—whether by active intervention, neglect, or failure to act—the incident is humanized and removed from the ambit of force majeure. Hence, there must be no human intervention that caused or aggravated the event, or at the very least, it must be beyond the obligor’s will.
In the case of Nakpil vs Court of Appeals, the Supreme Court elaborated:
“If upon 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 in Article 1170 of the Civil Code, which results in loss or damages, the obligor cannot escape liability.
The principle embodied in the Act of God doctrine strictly requires.
The principle embodied in the act of God doctrine strictly requires that the act must be one occasioned exclusively by the violence of nature and all human agencies are to be excluded from creating or entering into the cause of the mischief. When the effect, the cause of which is to be considered, is found to be in part the result of the participation of man, whether it be from active intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-1175).
Thus 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 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. (Fish & Electtive Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379; Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657).
Lastly, Article 1174 of the Civil Code of the Philippines demands that a party is still responsible despite the happening of a fortuitous event, if: (1) when so declared and specified by the law; (2) when expressly declared by stipulation or contract; and (3) when the nature of the obligation requires the assumption of risk
[1] G.R. No. 147324
[2] G.R. No. L-47851