When natural disasters – such as those we have seen in the country in recent days, caused by depressions and storms – strike, the first reaction is inevitably physical and human. However, calamity also has legal consequences. Its impact is felt, silently but deeply, in contractual relationships, in the insurance sector and, inevitably, in the judicial system.
The first significant effect arises at the level of obligations. Contracts entered into in a context of normality suddenly face circumstances that were neither foreseen nor carefully considered. Delays in the delivery of goods, suspension of construction works, temporary impossibility of providing services or the closure of establishments turn timely performance into a sometimes unfeasible task. The invocation of force majeure then emerges as a recurring argument, but its admissibility cannot be automatic: it requires proof of unpredictability, unavoidability and externality in relation to the debtor. Otherwise, there is a risk of converting an exceptional instrument into a generalized device of exemption from liability, emptying the very logic of contractual risk.
Like a kind of guarantee, the insurance sector takes center stage. It is when material damage and economic losses occur that the real substance of insurance policies, often drafted in technical language and not always transparent for the insured, is tested. Discussions then multiply around exclusion clauses – for example, in respect of properties located on floodplains, around the classification of the event as an “extreme event”, or around the causal link between the weather phenomenon and the specific loss. Delays in conducting loss assessments, refusals to pay compensation based on generic exclusions or interpretative disagreement regarding the scope of coverage, show that, very often, the storm does not end with the calm.
It is in this context that the courts emerge, not as a first reaction, but as an instance of rebalancing. The justice system is called upon to draw the line between the assumed risk and the truly extraordinary risk, between blameworthy non-performance and legitimate impossibility, between contractual literalism and the requirement of good faith. And the challenge is not merely technical: it is also one of speed in resolving disputes. In emergency scenarios, procedural delay can empty rights, but hasty decision-making can distort them. Effective judicial protection therefore requires not only speed but also discretion.
The starting point for this reflection is the Code of Civil Procedure, which enshrines, as a fundamental guarantee, the right to obtain, within a reasonable time, a judicial decision that assesses the claim brought before it and which can be enforced. In addition to legal actions (whether special or ordinary), especially in times of imminent threat, the recourse to precautionary measures is added, as these are urgent proceedings. They are genuine provisional instruments, which aim to safeguard the “useful effect” of the main action and not “exhaust” it. In natural disasters, for example, requesting the suspension of administrative decisions or ordering the Public Administration to adopt administrative acts does not dispense with the necessary demonstration of a specific threat to the right invoked, the choice of a suitable measure to neutralize it and proof of a balanced equilibrium between the public interest in civil protection and the private interest in question. If the precautionary measure is unjustified due to a fact attributable to the applicant, the latter is liable for damages; this shows that urgency does not override diligence, and that whoever applies must necessarily bear the burden of adapting both the summary evidence and the measures requested. Civil case law as well as administrative case law bases its practice, in emergency scenarios, on the following principles: (i) adequacy and proportionality, and (ii) accountability, prudence and equity.
However, the protection of rights does not end there: in situations of calamity, alternative dispute resolution mechanisms, such as mediation, arbitration or justice of the peace courts (“julgados de paz”), also take on particular relevance, allowing for swift and usually less costly solutions for contractual or compensation disputes that do not necessarily require the full intervention of the state courts. The proper use of the available remedies makes all the difference.
In conclusion, calamity generates a double tension: on the one hand, the legitimate need for swift protection of rights; on the other, the risk of excessive and improper litigation. The judicial proceedings cannot be a blind brake, but neither can become a reckless accelerator. They expose the robustness of contracts, the clarity of policies, the diligence of the parties and the capacity of institutions. The true test of justice does not lie only in its formal accessibility or in statistical speed, but in its ability to apply the law to the facts with discretion, promptness and responsibility. Because, ultimately, judicial protection is only effective when it is useful in protecting rights and sufficiently swift to prevent them from becoming irrelevant.
.
