Reflexões em torno da impossibilidade definitiva na execução dos contratos administrativos

Abstract

Among the cases of disruption of contract execution driven by the pandemic, it is possible to identify the disruptions to the purpose intended by the public contracting party – it is not the private party whose ability to provide is impaired, but the public creditor to whom the obligation ceases to be useful (for example, the provision of school meals due to the suspension of face-to-face classes). The present study addresses the question of knowing when does a disturbance of the intended purpose (lato sensu) constitute an impossibility of performance (usually treated as “force majeure” in the Administrative Law) (3.). It also discusses the criteria for allocating the impossibility to the creditor and, not being attributable to him, of when there may be a risk sharing (4.). Lastly, some reflections are laid out on the connection between impossibility of performance and change of circumstances, acknowledging that the latter can exceptionally be summoned by the public contractor in the position of creditor (5.).