SEGURIDAD JURÍDICA Y TEORÍA DE LA EXCESIVA ONEROSIDAD EN LOS CONTRATOS DE TRANSPORTE

Abstract

This article reviews the theory of hardship applied to transport contracts and studies whether it undermines legal certainty. It identifies fundamental contractual principles such as pacta sunt servanda, contractual good faith, force majeure, and legal certainty to explain the origin and nature of the theory under discussion. The importance of the transport contract in national and international trade and its exposure to various external factors is highlighted. The legal and jurisprudential treatment of the subject by several countries is detailed, noting that Ecuador lacks legislation in this regard. The definitions and requirements proposed by the UNIDROIT Principles to qualify the event causing hardship are also specified. The inclusion of a hardship clause in transport contracts is proposed to mitigate the risk of the principle's non-application by judges or arbitrators. Emphasis is placed on the balance of interests between the parties at the time of contract formation, which may not coincide with the economic balance of the contract. It is concluded that hardship is justified basically by the principle of good faith and embodies an ideal of justice, which is not contradictory to legal certainty, as legal certainty cannot exist in an unjust order. The ability to adapt the contract to restore the legal situation initially assumed by the parties reinforces the constitutional principle of legal certainty.