The term case , whose etymological origin is found in Latin casus, refers to a affair , a event or a fact . Fortuitous , meanwhile, is something that happens casually, unexpectedly or randomly .
The idea from fortuitous case , 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 right , a fortuitous case is an event that the individual generates involuntarily and, therefore, is not expected to fulfill certain obligations. In other words: a fortuitous case occurs when an event makes it impossible to fulfill an obligation, since that event could not be foreseen and, for that reason, could not be avoided.
In the law ladder, the fortuitous case happens at force majeure case , which is one that not only could not be foreseen, but also, if it had been foreseen, could not have been avoided either. Even with these differences, both cases are usually treated similarly by the law .
The fortuitous cases are unpredictable ; Force majeure cases, inevitable. It is often said that the fortuitous case is generated by a affair from internal order , while the case of force majeure comes from abroad.
Continuing with this differentiation, the fortuitous case occurs because of something that resulted unknown for 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 is a fortuitous case. A twister that causes destruction in a house, on the other hand, is a case of force majeure.
In the two examples presented in the previous paragraph one of the nuances in which the courts are based to solve cases where it is impossible to blame someone directly is appreciated: although we cannot perceive it with the naked eye, a mechanical failure arises unfailingly from one or more mistakes (unforeseen at best) by 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, as the mechanical failure derives from the actions of a person and not from the effects of a phenomenon Natural, we can resolve that this is a fortuitous case. At the other extreme we find the case of the tornado that has 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 case is constituted by a series of characteristics that serve to distinguish it from others: it is unpredictable, unlike certain phenomena of nature; it is strange to the debtor, so that he cannot have caused it voluntarily; must arise after the cause of the obligation; it must harm the debtor directly; the debtor cannot meet the obligation .
As is often the case in this area, the characteristics of the concept are not identical in all countries, although in broad strokes we can recognize it in all the laws of the world.
If we focus on the laws of Nicaragua, for example, we find a point of view according to which the fortuitous case and the case of force majeure produce the same result, although the former is closely related to a series of human-caused events. (although not generated directly but that arise as damage collateral), while the second arises as a result of the action of nature.