Possible government resources should not be enough to stave off the acute crisis in the business environment. Media reports say that Brazilian public banks will provide around R $ 145 billion to companies in the country in an attempt to prevent the economy from paralyzing. However, these resources tend not to reach medium and small companies (“Aid from a public bank against viruses may not reach small businesses” - Folha de S. Paulo, 03/22/2020) - which are already strangled and will not be able to provide guarantees for loans in this market.
Therefore, Brazilian companies will have a unique challenge: to survive or to die. They will need to go to court or other forms of dispute resolution to maintain their activities, lengthen debts, rebalance contracts and relations with their employees. They must go through what we call “bet-the-company” litigation (“Bet-the-company litigation” - Valor Econômico, 02/28/2020).
One of the keys to these discussions consists in demonstrating the occurrence of unforeseeable circumstances or force majeure, that is, a situation in which the contractor is not in control of the circumstances, extrapolating the “business risk.” In effect, the pandemic resulting from COVID-19 and its economic and financial effects seem to us to constitute a fortuitous or force majeure situation.
Although such figures may have distinctions in the academic field, the legal consequences that result from them are the same. Among them, release the part of indemnity due to possible damage (CC, art. 393) and authorize the termination of contracts of continuous or deferred execution (CC, art. 478).
Cristiano Zanin Martins 
