The term case , whose etymological origin is found in the Latin casus , refers to a matter , an event or a fact . Fortuitous , on the other hand, is something that happens casually, unexpectedly or randomly .
The idea of a fortuitous event , in this framework, is used with respect to that which occurs by chance . Many times the expression refers to an event that causes damage and whose origin cannot be attributed to someone in particular.
In the field of law , a fortuitous event is an event that the individual generates involuntarily and, therefore, is not expected to comply with certain obligations. In other words: a fortuitous event occurs when an event makes it impossible to fulfill an obligation, since said event could not be foreseen and, for that reason, could not be avoided.
In the hierarchy of law, the fortuitous event succeeds the case of force majeure , which is one that not only could not be foreseen, but also, if it had been foreseen, it could not have been avoided either. Even with these differences, both cases are usually treated similarly by law .
Fortuitous events are unpredictable ; cases of force majeure, unavoidable. It is usually said that the fortuitous event is generated by an internal matter , while the case of force majeure comes from the outside.
Continuing with this differentiation, the fortuitous event occurs due to something that was unknown to the individual, although it was part of the internal plane of his action . The case of force majeure, on the other hand, is caused by an external event.
A mechanical failure in a car whose cause is unknown constitutes a fortuitous event. A tornado that causes damage to a home, on the other hand, is a case of force majeure.
In the two examples presented in the previous paragraph we can see one of the nuances on which the courts rely to resolve cases where it is impossible to blame someone directly: although we cannot perceive it with the naked eye, a mechanical failure inevitably arises from one or more errors (unforeseen at best) on the part of the technicians involved in the manufacture and, later, the maintenance of the car; It is the consequence of the way in which someone carries out their activity at a given time.
For this reason, since the mechanical failure derives from the actions of a person and not from the effects of a natural phenomenon , we can conclude that it is a fortuitous case. At the other extreme we find the case of the tornado that left a house in ruins: if we apply what has been said so far, there is no doubt that it is a case of force majeure.
The backbone of the fortuitous event is made up of a series of characteristics that help us distinguish it from the others: it is unpredictable, unlike certain natural phenomena; It is foreign to the debtor, so that he cannot have caused it voluntarily; it must arise after the cause of the obligation; must harm the debtor directly; The debtor cannot fulfill the obligation .
As is often the case in this area, the characteristics of the concept are not identical in all countries, although in general terms we can recognize it in all the legislations of the world.
If we focus on the laws of Nicaragua, for example, we find a point of view according to which the fortuitous event and force majeure produce the same result although the former is closely related to a series of events caused by human beings. (although it does not generate them directly but rather they arise as collateral damage ), while the second arises as a consequence of the action of nature.