1- If I sign a contract in the middle of the pandemic and fail to meet my obligations, may I invoke the concepts of unforeseeable events/force majeure?

No, unforeseeable events and force majeure consist of situations that cannot be predicted, avoided or prevented. Once the parties are aware of the situation of uncertainty and may avoid contracting, invoking such concepts shall no longer be viable.

2-My contract sets forth that I assume responsibility for my obligations even if there are unforeseeable events/force majeure. Must I pay?

Yes. Under Brazilian law, the parties shall comply with terms and conditions set forth by the contract – which includes liability undertaken in the event of unforeseeable and unavoidable events and/or force majeure.

3-My contract has an irrevocability and irreversibility clause. Might its terms and conditions still be renegotiated?

Yes. The irrevocable and irreversible clause prohibits any of the parties involved to unilaterally change the terms and conditions set forth – however, both parties may  renegotiate and reach a new agreement together.

4-If there is no penalty provided for in the contract and I do not comply with my obligations, what happens?

Despite the absence of a penalty or fine in the contract, the other party may go to court to demand compliance with the main obligation, in addition to monetary adjustment and interests and reparation for eventual losses and damages.

5- I failed to fulfill a contractual obligation that was due before the pandemic, may I claim that it is impossible to fulfill it at the present time?

No. Obligations due before the pandemic will be considered in light of the facts existing at the time of maturity. For this provision or obligation, it will not be possible to renegotiate or be exempted from eventual penalties, except if mutually agreed upon between the parties.

6- In a contract started in February, when there were no shutdowns in Brazil, but the virus had already been discovered in China, may I be exempted from fulfilling my obligations alleging unforeseeable events/force majeure?

This analysis will depend on the interpretation of the judge or arbitrator, as the case may be. However, keep in mind that unforeseeable events/force majeure are derived from an unpredictable fact that could not be avoided or prevented. Therefore, the closer the date of the contract is to the decree of public calamity from the authorities – or containment measures have already been observed in other countries -, the lower the chances of success of the argument.

7- Are the concepts the same for contracts signed with the public administration?

No. Contracts executed with the public administration are governed by specific laws, rules and procedures and each case must be carefully analyzed before taking any action in view of the current scenario.