Contractual Risk and the “Risk of Loss”, which Depends “On a Future and Uncertain Event”

Abstract

The conclusion of any contract entails, to a greater or lesser extent, that the contracting parties assume certain risks—whether such risks are intentionally introduced into the legal structure by the parties themselves or arise and produce effects independently of their will. This makes it necessary to distinguish between different types of risk, including those intrinsic to certain contractual categories and others that are merely similar.

As the very name suggests, aleatory contracts inherently involve the element of hazard (alea), which forms part of their legal cause. In such contracts, each party assumes both the risk of a loss and the possibility of a gain.

When classifying contracts based on whether they are subject to conditions, aleatory contracts are considered inseparable from modalities—specifically from terms and conditions. However, hazard (alea) goes beyond a mere condition or term.

Moreover, it is essential to distinguish between the general risk of the contract and the aleatory element specific to the contractual category being examined—especially in terms of their source and the effects they individually produce.