A partilha de risco nos contratos de construção de imóveis no Código Civil e no DCFR: análise comparativa

The purpose of this paper is to carry out a comparative analysis between the Portuguese Civil Code (PCC) and the Draft Common Frame of Reference (DCFR) in the matter of risk sharing in building construction agreements regarding three main aspects: delay due to force majeure, performance rendered impossible and risk of loss or of damage to the works. Arts. 790 et seq., show that the Portuguese Civil law doesn’t have a positive definition of “risk”, but it is possible to draw the conclusion that “risk” refers to events which render performance more difficult, more onerous or even impossible and which are not caused by either the builder or by the client. In what concerns delay due to force majeure, PCC and DCFR have similar solutions: (i) the constructor is not liable for such delay, being entitled to an extension of time for performance; (ii) each party bears its own additional costs arising from the force majeure event, including, on the part of the builder, the additional costs needed to perform its obligations; (iii) the client is entitled to terminate the con tract if the delay leads to a fundamental non performance.If performance is rendered impossible for reasons not attributable to the builder or the client, both parties are released from performance (both in PCC and DCFR). In the cases where the works were partially performed, the client is entitled to the partially performed works and to reduce the price accordingly. When there was a partial performance but the client has no interest in the partially performed works, art. 1228 PCC, imposes an obligation on the client to pay the builder for the cost of the works performed and of the materials incorporated. In what concerns risk of damage and of loss to the works, there is a relevant difference between PCC and DCFR, since Portuguese law follows the rule “res suo domino perit”, being understood that the owner of the works is the owner of the land where the building stands. This means that when the building is erected on the land of the client, the risk of damage or loss is borne by the latter even before completion. on the contrary, under DCFR rules risk of damage or loss, such risk is borne by the builder until the control of the works is transferred to the client, even if the building is erected on the client’s property.