La mayor onerosidad fortuita en el contrato de obra pública

Translated title of the contribution: Fortuitous Hardship in Public Construction Contracts

Jaime Arancibia Mattar*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review


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.

Translated title of the contributionFortuitous Hardship in Public Construction Contracts
Original languageSpanish
Pages (from-to)335-362
Number of pages28
JournalRevista Derecho del Estado
Issue number56
StatePublished - May 2023

Bibliographical note

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  • Onerousness fortuitous
  • contract
  • public works
  • financial imbalance


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