The Brazilian Civil Code (Law no. 10.406/2002) establishes in its article 393 that Force Majeure takes place when there is an unavoidable event which effects are unavoidable or impossible to prevent. In this case, the debtor is not liable for damages resulting from such event, unless debtor has expressly assumed liability.
It is important to note that we use the expression Force Majeure throughout this work as Brazilian legislation does not differentiate Force Majeure and Act of God, treating them as the same.
In summary, under the Brazilian legislation, Force Majeure can be classified as the incident related to external facts, with no influence of human will, impeding the fulfillment of obligations.
Unless a contract foresees that parties will be liable even in case of Force Majeure, the exclusion of liability for damages caused by the inability to fulfill obligations due to force majeure is recognized.
On the other hand, Hardship is understood as the excessive burden on one party, with extreme advantage for the other, arising from an extraordinary and unpredictable event, as determined by article 478 of the Brazilian Civil Code. Such extraordinary and unpredictable events may not be objectively related to the nature of the agreement. As an example, Brazilian courts considered that climate issues impeding the delivery of sugar cane under a supply agreement are not a Hardship event as the climate is a risk inherent to agricultural business.
In the event of Hardship the party suffering the excessive burden may request the termination of the agreement or the alteration of its conditions. The other party may avoid the termination offering to alter the contract to restore its balance, as per the sole paragraph of the above-mentioned article.
Moreover, Brazil is a signatory of the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG), and, therefore, its application on contracts for the sale of good entered by and between parties domiciled in Brazil and another country that is signatory of the CISG is automatic, unless the parties expressly derogate from specific articles or exclude its application.
However, as Brazil has been a signatory of CISG since 2014, its Courts have not formed solid jurisprudence on the matter so far. First caselaw is dated from 2017 and recognizes the application of CISG in a case of international sale of goods not supported by a written contract. There is no case law yet regarding Force Majeure and CISG.