Article 1.105 of Spanish Civil Code abounds in the impossibility of complying with the obligations in cases of force majeure. It specifies that no one should answer for those events that could not have been foreseen or that, foreseen, were unavoidable. This precept refers to what we know as a fortuitous case or force majeure.
Spanish High Court requires: that these be events that are unpredictable, inevitable, insurmountable or irresistible, that are not due to the will of the alleged debtor, that make it impossible to comply with a obligation previously contracted or prevent the birth of which may occur, and that between said result and the event that produces such event there is an efficient causal link.
Finally, force majeure will not apply if the contract already provides that contractual benefits must be carried out even in case of force majeure (article 1.105 of Spanish Civil Code).
The assessment of supervening impossibility and force majeure as liberatory causes must be based on an interpretation
restrictive and casuistic.
Rebus sic stantibus clause
Spanish case law has also developed a case law legal remedy named “rebus sic stantibus clause”. It is a very restrictive legal remedy that may allow any party to terminate or revise the terms of an agreement due to the supervening alteration of the circumstances which concurred at the time it was entered into by invoking the application of the so called rebus sic stantibus clause. But each case should be studied on a case by case basis.
On any of the above circumstances (“force majeure” or “rebus sic stantibus clause”) we do recommend that the party that wants to use such legal remedy sends to the other party a written notice with acknowledge of receipt explaining the circumstances or reasons why cannot fulfil or continue with the obligations and thus ask for the termination, suspension or modification of the obligation.