Resumo

ARANCIBIA MATTAR, JAIME. Fortuitous Hardship in Public Construction Contracts. Rev. Derecho Estado [online]. 2023, n.56, pp.335-362.  Epub 15-Maio-2023. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n56.12.

This paper seeks to answer the question as to which party must assume the hardship caused by fortuitous events in public construction contracts. For this purpose, it is necessary to determine the mechanism for the restoration of the equilibrium lost due to this event, which makes it necessary to distinguish whether the specific regulations or the contract have regulated a compensation regime for such cost overruns. In such a case, as it is obvious, the contract must be followed. However, in the event of a normative or consensual omission on the matter, the doctrine of unforeseeability must be considered. In regard to this, Chilean administrative case law has rejected the application of that theory on the ground that it lacks statutory laws that provide for it. This paper is critical of that doctrine because such silence should be directly filled by the constitutional rule on distributive equality and, therefore, by the social duty to compensate any economic imbalance that cannot be imputed to the builder.

Palavras-chave : Onerousness fortuitous; contract; public works; financial imbalance.

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