Foreign Contracts Strike Back: Force Majeure Clauses, Hardship, Impracticability, and Other Misunderstandings; [Os contratos estrangeiros contra-atacam: as cláusulas de força maior, hardship, a impracticability e outras incompreensões]

Espinoza Espinoza J.A. · Revista Oficial del Poder Judicial (2026) · DOI: 10.35292/ropj.v18i25.1508

Resumen

This paper critically analyzes the incorporation of common law clauses, such as force majeure clauses, hardship clauses, and the doctrine of commercial impracticability, into contracts governed by civil law systems, with particular attention to Peruvian law. Through a doctrinal and comparative approach, it examines relevant common law case law, international arbitral decisions, and transnational contract law instruments, such as the model clauses of the International Chamber of Commerce and Article 79 of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The study highlights that economic difficulties, market volatility, or loss of profitability do not generally constitute force majeure events or excusable impossibility of performance, and that confusion between impossibility of performance and excessive hardship leads to erroneous interpretations of contractual risk. Finally, it argues that although transnational contract law tends to bring the requirements of force majeure and hardship closer together, in the Peruvian context these concepts must be interpreted cautiously, respecting the mandatory provisions of the Civil Code, the principle of pacta sunt servanda, and the system of contractual remedies established by domestic law.

Instituciones: Pontificia Universidad Católica del Perú