Cláusula de hardship e força maior nos contratos internacionais de compra e venda em economias em desenvolvimento

Abstract

The present work entitled “Hardship Clause and Force Majeure in International Purchase and Sale Contracts in Developing Economies”, had the main objective of discussing the value of contractual hardship and force majeure clauses in light of Mozambican law and international instruments. Using the approach, technique and documentary and legislative approach, the qualitative work had as its premise the search for the treatment of the clauses under study regarding their purpose and applicability in contracts. From the doctrinal reading and legal interpretation made of the hardship and force majeure clauses, it was concluded that they are clauses with a common element of unpredictability whose purpose is to protect a legal asset of the contractual parties. However, it is clear that the legal effects of the clauses are distinct because, in the case of excessive burden (hardship), it is the request for renegotiations and in the case of force majeure it is the suspensive effect of the obligations. Meaning that the pacta sunt servanda principle is only embodied in hardship events by allowing the party in excessive burden to have the legal prerogative to continue negotiations after verifying events beyond its control. However, in the case of force majeure, pacta sunt servanda does not have the character of a general rule in international commercial sales contracts, but rather an exception, the effect of which is the suspension of the contractual obligation. Private autonomy with regard to the drafting of the contractual content in clauses specific to the parties assumes the nature of a rule since Mozambican law, as well as international legal instruments, only establish recourse to arbitration as a second option.