On risks in contracts for works and services

Abstract

The risk, from a legal perspective, constitutes an objective element that exists independently of the parties’ intentions reflecting uncertainty and unpredictability. Simultaneously, it represents an event that may impact the contractual balance and result in adverse consequences for both parties. Consequently, this paper seeks to examine the mechanisms for managing risks in contract for works and services, emphasizing the importance of maintaining an equitable balance between the parties and the mechanism through which these risks can be adjusted when they arise during the contract. The entrepreneur, as a professional, assumes the independent fulfillment of contractual obligations at their own risk, while maintaining the freedom to organize and accountability for the contract’s outcome. The study explores the impact of risks on the rights and obligations of the parties, drawing from current legal provisions and offering additional interpretations concerning the transfer of the risks, the relevance of the nature of obligations and the role of guarantees. The analysis focuses on identifying the risks associated with the contract for services and works, as well as on the manner in which these risks are assumed by the contractor both before and after the moment of acceptance. Furthermore, it examines the transfer of risks between the parties based on the contractual stage and specific provisions, while assessing the influence of guarantees, the classification of obligations, and the method of determining price on the allocation of risks. The conclusions underscore the necessity for clear and flexible mechanisms to distribute risks equitably, thereby mitigating imbalances and ensuring fair and predictable contractual relationships.