Data
- Date:
- 02-10-2020
- Country:
- Brazil
- Number:
- Recurso Inominado nº 0037976-66.2019.8.1
- Court:
- Tribunal de Justiça do Estado do Paraná - 2ª Turma Recursal dos Juizados Especiais
- Parties:
- --
Keywords
AIR TRANSPORTATION CONTRACT BETWEEN AN ARGENTINIAN COMPANY AND SOME BRAZILIAN CONSUMERS - ARGENTINIAN LAW AS APPLICABLE SUBSTANTIVE LAW (PLACE OF PERFORMANCE OF THE OBLIGATION), SUPPLEMENTED BY THE UNIDROIT PRINCIPLES - REFERENC TO ART. 7.1.7 UNIDROIT PRINCIPLES IN ORDER TO DEFINE AN EVENF OF FORCE MAJEURE
COURT UNDERLYING THE COMPATIBILITY OF THE UNIDROIT PRINCIPLES WITH THE BRAZILIAN LEGAL SYSTEM AND VALIDATING THEIR SUPPLEMENTARY APPLICABILITY IN INTERNATIONAL DISPUTES GOVERNED BY FOREIGN LAW
UNIDROIT PRINCIPLES REFLECTING INTERNATIONAL TRADE USAGES APPLICABLE TO INTERNATIONAL CONTRACTS
Abstract
The Paraná State Court (2nd Special Court Appeal) resolved a dispute arising from an air transportation contract for domestic flights in Argentina, acquired by Brazilian consumers. Despite the fact that this was an international commercial relationship—given the parties' different nationalities—the Brazilian court affirmed its concurrent jurisdiction by applying Article 21, paragraph I and sole paragraph of the Brazilian Code of Civil Procedure and Article 12 of the LINDB (Lei de Introdução às normas do Direito Brasileiro), notwithstanding that the applicable substantive law was Argentine law (place of performance of the obligation), supplemented by the UNIDROIT Principles.
On the merits, the court analyzed that the flight cancellation incident was a consequence of a decision of the Federal Court of First Instance of San Martín (Argentina), which prohibited operations at El Palomar Airport between 11:00 p.m. and 6:00 a.m. This decision, binding for the airline company, was considered an external force majeure event (força maior), pursuant to Article 7.1.7 of the UNIDROIT Principles of International Commercial Contracts.
Consequently, the Court of Appeals held that this event, unforeseeable and beyond the carrier's control, broke the causal link between the breach (flight cancellation) and the damages alleged by the passengers (hotel expenses, new tickets, and meals). The court also emphasized that the airline was not at fault or negligent in its handling of the situation.
Following this logic, the first instance judgment ordering FB Líneas Aéreas S.A. to pay material and moral damages was reversed, and the claims (including related actions) were declared inadmissible. The defendant was also exempted from paying succumbency fees, pursuant to Article 55 of Law 9.099/1995.
The decision undelines the compatibility of the UNIDROIT Principles with the Brazilian legal system (LINDB, Article 17) and validates their supplementary applicability in international disputes governed by foreign law.
Excerpts of interest:
a) International trade usages, applicable to international contracts, provide for the liability of the party who, by reason of force majeure, fails to fulfill the obligations assumed by the contract. Such usage is reflected in the 'Principles of Unidroit of International Commercial Contracts' and can be observed by reading its articles 7.1.7.
b) It is important to emphasize that the principles of international contracts applied to the specific case do not contrast with national sovereignty, public order and good practices (LINDB, art. 17). On the contrary, the customary principles of international contracts are in accordance with the Brazilian legal system, and can be regularly applied by Brazilian judges.
English translation of the Spanish abstract written by Juan José Conforto Sarrias for CISG Spain
Fulltext
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Source
Abstract and fulltext in Spanish:
- available at the University of Carlos III website, http://www.cisgspanish.com}}