Contract

A contract is a legal, oral or written agreement, expressed jointly between two or more persons with legal capacity (parties to the contract), who are bound by virtue of the contract, regulating their relations according to a certain purpose or thing, and whose compliance can be compelled reciprocally, if the contract is bilateral, or compel one party to the other, if the contract is unilateral. It is the contract, in short, an agreement of wills that can generate rights, obligations and other types of relative legal situations; that is, they only bind the contracting parties and, eventually, their successors in title. But, in addition to the agreement of wills, some contracts require, for their perfection, other facts or acts of legal scope, such as making a certain delivery (real contracts), or require to be formalized in a special document (formal contracts), so that, in these special cases, mere will is not enough. In any case, the contract, in general, has a patrimonial connotation, even partially in those entered into within the framework of family law, and is part of the broader category of legal transactions. It is an elementary function of the contract to originate legal effects (that is, enforceable obligations), so that the relationship of subjects that does not result in legal effects cannot be attributed quality contractual.

In each country, or in each state, there may be a system of contractual requirements, superficially different, but the basic concept and requirements of the contract are, in essence, the same. The divergence of requirements has to do with the variety of socio-cultural and legal realities of each one of the countries (thus, for example, there are legal systems in which the contract is not limited to the field of property rights, only, but covers also personal and family rights, such as the countries in which marriage is considered a contract).

Since the contract is a category of the legal act, its validity and effectiveness are not only subject to the rules that regulate such aspects of the contract, but also those rules related to legal transactions. Therefore, any cause of nullity or voidability of a legal act, is also of a contract.

The written form attributes security to the terms of the contracts. In this case, the financing of a society is contracted through unilaterally issued obligations. In the example, an obligation of the Netherlands Company of the East Indies, issued in 1623 with its annotations and signatures that credit the provision of wills in the transmission of the same.

Cover of the first edition of the French Civil Code of 1804, in which historically the editors of the civil codes of continental law, majority in Europe, and also in many other countries of Roman-Germanic-channel legal structure, in North America, Central and South, North Asia and Central Africa.

Legal concepts of contract

Conceptually it is a particular type of convention, from the doctrinal construction of republican roman law; the classical Roman doctrine refined its definition and has been integrated into practically all of the western (not to say world) legal architectures; Obviously, there are some nuances that are not of interest to refer to now, although the one related to the fact that, as a matter of fact, the legal construction of a contract must be understood as a particular form of convention. Thus, in Justinian's Digest, the following definition of convention is authored by Ulpiano: “Conventio (est) duorum, vel plurium in idem placitum consensus de giving aliquo, faciendo, vel praestando” [ the convention is the consent of two or more people who agree on something, that they must give or do], which must be completed with the Roman doctrinal definition of contract, like this: "contractus (est) conventio quae habet vel nomen, vel causam” [the contract is the convention that has either name, or cause]. The Latin literal is explicit. As a result of the codification that occurred during the 19th century in Europe, the synthetic definition of contract was incorporated as a convention to the bodies of the different national civil law, without this being considered as a novelty, since the Justinian Code does not It ceased to be applicable law, directly or by incorporation into other national repertoires, since before the different modern law codes. Therefore, it should not be understood, under any circumstances, a creation of French or Napoleonic law; not even in the literal of the expression, as is demonstrated by the original source of the Digest.

Most of the civil codes of countries whose legal systems derive historically from the Roman-canonical and Germanic system, contain approximate definitions of the contract. Most of them follow the structural guidelines of the French Civil Code, heir to the Napoleonic Code, whose article 1101 establishes (repeating the literal of the Digest referred to above) that the contract is the convention by which one or more persons are bound, with another or others, to give, do, or not do something.

The BGB, German Civil Code prescribes for its part that "for the formation of a binding business by legal acts, as for any modification of the content of a binding business, a contract concluded between the parties is required, except otherwise provided by law". For its part, the Swiss Civil Code states that "there is a contract if the parties express their reciprocal will in a concordant manner; this manifestation can be express or implied".

The Civil Code of the former Soviet Union only stated that "legal acts, that is, acts that tend to establish, modify or extinguish Civil Law relationships, can be unilateral or bilateral (contracts)&# 3. 4;.

The Spanish Civil Code, in its art. 1254, like all those in continental Europe, also follows the trail marked by Justinian's Corpus Iuris Civilis, as it could not be otherwise according to the sources of Castilian or Aragonese law, adhering to their own tradition; although, the codification works throughout the 19th century in Spain were adjusted, among other own compilations, to the systematics of the Napoleonic Code. Due to the direct influence of the Digest, the rule is expressed as follows: "the contract exists since one or several persons agree to be bound, with respect to another or others, to give something or provide some service." The Argentine Civil Code, in its art. 1137, establishes that "there is a contract when several people agree on a declaration of common will, aimed at regulating their rights."

According to the Civil Code of Uruguay (art. 1247), "Contract is an agreement by which one party is obligated towards the other or both parties are reciprocally obligated to any provision, that is, to give, to do or not to do something".

Influenced by the evolution of civil law in South America, in the Republic of Ecuador in a similar sense prescribes as a contract in art. 1454 "Contract or convention is an act by which one party agrees with another to give, do or not do something. Each can be one or many people"

The Civil Code of Bolivia (art. 450) indicates, "There is a contract when two or more people agree to establish, modify or extinguish a legal relationship with each other."

In El Salvador, its Civil Code (art. 1309) defines it as “A contract is an agreement by virtue of which one or more persons agree to another or others, or reciprocally, to give, do or not do some stuff."

Historical background of the contract

Among the remote antecedents, on which there is a greater degree of coincidence in the doctrine, the following can be cited:

Roman contractual system

In Roman law the contract appears as a form of agreement (conventio). The convention is the consent of two or more people who agree on a thing that they must give or lend. Consensuality was the dominant prototype.

The convention is divided into a pact (pactum) and a contract (contractus), being the pact that which has no name or cause and the contract that which does. In this context, the word that produces the action is understood by name (the pact refers only to relationships that only engender an exception). The cause is something present from which the obligation is derived. The pact was gradually assimilating to the contract when considering the actions the instrument to demand its fulfillment.

The contract applies to any voluntary agreement aimed at creating civilly enforceable obligations and was always protected by an action that gave it full legal validity.

Contracts are divided into true and quasi-contracts. Those based on the express consent of the parties were true and those based on the presumed consent were quasi-contracts.

In turn, the true contracts were divided into nominated and unnamed. Those who had a specific and particular name confirmed by law (eg purchase and sale) were nominated and those who, even having cause, did not have a name, were nominated. The unnamed contracts were four: "I give so that you give", "I give so that you do", "I do so that you give" and "I do for you to do". The characteristic of unnamed contracts is that they did not involve counted money.

In Roman law there were unilateral and bilateral contracts. Unilateral contracts bound only one of the parties (for example, the mutual) and bilateral contracts bound both parties (as in the case of the sale).

Actions on contracts in Rome.

The action (Actio) was the other essential element of contracts in Roman law. The actions related to contracts are actiones in personam in which the plaintiff bases his claim on a contractual or criminal obligation, which could be Direct and Contrary . Examples of them are:

• «Direct act»: Direct actions were those with which the creditor had, against the debtor, from the very moment of the conclusion of the contract, such as. the «actio certi» (that pursues a specific object, sum of money or thing); theactio ex stipulatio» (which the creditor has when the object was neither money, nor generic goods, but implied a do); the «actio locati» (which the tenant has against the tenant); theactio commodati direct» (to achieve the restitution of the thing given on loan); theactio depositi direct» (to require the depositary to restitution of the deposited thing);actio mandati direct» (to require the president to account for the mandate);direct advocacy» (so that the owner recovers the thing given in garment); the «actio negotiorum gesturerum direct» (to demand accountability to a business manager).
• «Contrary act»: Actions for which compensation is always sought, i.e., they are born after the contract has been concluded, such as the "actio fiduciae» (for the return of the property transmitted in guarantee); the «actio redhibitorio» (to terminate the contract for finding hidden vices in the thing sold); the «actio quanti minoris» (for which the buyer requires a reduction in the price of the thing because it does not correspond to the real price), the latter also called «actio estimatoria»; the «actio conducti» (to enforce obligations on the landlord);actio commodati contra» (in order to recover the possible damages or expenses caused by the thing given in comodato, it has caused the fellow;actio depositari contra» (for the depositor to pay the expenses of the deposit);actio mandati contra» (to require the manager to account for the expenses incurred during the mandate);actio pignoraticia contra» (for the default creditor to demand to recover the damages and expenses caused by the pygnotated thing); the «actio aerviana» (which allowed the pygfather to remain in possession of the invecta et illata which were to serve as a guarantee; theactio quasi serviana» (extension of the actio Serviana to other objects given in garment, also called hypotecaria. The «actio negotiorum gesturerum» (for the manager to recover the expenses);actio depensi» (so that the fiator may charge the main debtor what had not been repaid); theactio poenae persecutoria» (for damage repairs); the «actio rei persecutoria» (to recover the lost thing and its belongings, the present reipersecutoriedad);actio praescriptis verbis» (in situations where the actor had fulfilled and the defendant did not), also called “actio civilis incerti» or «civilis in factum», typical of unnamed contracts; and the «actio doli» (criminal action that is exercised against those who harm with dolo).

Nominated contracts in the Law of Rome

Some types of contracts in Roman law were:

• Aestimatum. Contract whereby a party receives objects charged with the obligation to sell or return them after a certain time.
• Chirographum. A way of forcing the pilgrims, by which the debtor gave the creditor a receipt.
• Syngraphae. Verbatim means of forcing pilgrims, consisting of two copies, one in the possession of the creditor and the other in the possession of the debtor.
• Conventio in manum: Contract verbis en virtue of which the wife enters the husband ' s family, legally occupying the place of a daughter.
• Depositum: Deposit. Contract that is perfected with the delivery of the thing that the depositary must return when the depositor requires it.
• Depositum irregulare: Money deposit or consumables.
• Dictio dotis. Verbis contract in which the father, a third party or a woman undertake to constitute a dowry.
• Iusiurandum liberti: Verbis contract by virtue of which the slave undertakes to provide certain services to the pattern. Also called promissio iurata liberti.
• Locatio conductio: Leaning. One of the parties (crazy.) is obliged to procure the other (driver) the use and temporary enjoyment of a thing or the provision of a given service (locatio conductio opera) or the execution of a work (locatio conductio operis), in exchange for an amount of money called You know what?.
• Mandatum: Mandate. Contract by virtue of which a person (Leader) order another (President) the free realization of a certain act, by account or interest of that or third.
• Pignus: Clothing. The debtor, or a third party, gives the creditor the possession of one thing, in guarantee of a debt.
• Precarium: Unknown contract by which one of the parties grants the loan of one thing to the other party, who has requested it especially (challenges) which is obliged to return it to the first request.
• Societies: Society. Contract between two or more persons, in order to participate in profits and losses.
• Stipulatio: Verbal, solemn, unilateral contract stipulation consisting of a question followed by a congruent answer.
• Transactio: Unknown contract consisting of an extra-judicial agreement whereby the parties make concessions to avoid the results of the subsequent trial.

Cover of Las Seven Parts. 1555 edition, glossed by Gregorio López.

Contracts typified in the Seven Items

The Code of the Seven Items of King Alfonso X (1252-1284), of Castile, has exercised, for several centuries, an enormous legal influence on contractual law in Spain and also in most of the Spanish-speaking countries of America. The Fifth Item, made up of 15 titles and 374 laws, refers to the acts and contracts that the human being can carry out or celebrate in the course of his life (private law). It deals with the mutual contract, prohibiting the charging of interest or "usury"; bailment; of deposit; of donation; of sale, with the distinction between title and way of acquiring (derived from Roman law); exchange; of rental or lease; company or partnership; of stipulation or promise; and the bond and the peños (mortgages and pledges). It also refers to the payment and assignment of assets. Likewise, it includes important rules of commercial law, referring to merchants and commercial contracts.

Interpretation of contracts

Interpreting a text consists of attributing precise meaning to its words. The interpretation of any text is fundamental, and especially in terms of contracts, because the subsequent legal classification and determination of the effects that the legal system assigns to the manifestation of the will included in its terms depend on it. In the case of contracts, its interpretation will essentially have to define the cause, the object and the manifestations of will with integration of what, while not being essential, lacks its perfection (principle of integration of the contract). The problem of the inconsistency of the contract, in case of disagreement between the parties, is transferred to the judge, who will apply the interpretative rules in accordance with the principle of legality.

Interpretation methods

There are several methods of interpretation that may vary according to the Civil Code that governs.

But there are basically two currents, two methods of interpretation: the one that proposes to analyze the text (literally) and the one that proposes to find the common intention of the parties, that is, what the authors wanted to say. Several authors understand that getting to know the common will of the parties is very complex and increases the judge's discretion.

Subjectivist theory

According to this theory, the judge must seek a solution based on the intentions of the parties at the time of contracting. The work of the judge would consist, then, in investigating these intentions. It is the option that follows, among others, the Chilean Civil Code (art. 1560) and the Spanish (arts. 1281 and 1286).

Objectivist theory

The judge must evaluate the objective data emanating from the agreement to specify what was the common intention of the parties. It is the option followed, for example, by the French Civil Code and the Federal District of Mexico.

Guidelines for interpreting ambiguous expressions

The clauses susceptible of two senses, in one the validity results, and in the other the nullity of the act, must be understood in the first. The equivocal or ambiguous clauses must be interpreted by means of the clear and precise terms used in another part of the same writing. The facts of the contracting parties, subsequent to the contract, that are related to what is being discussed, will serve to explain the intention of the parties at the time of entering into the contract. The ambiguous clauses are interpreted by what is customary and use in the place of the contract.

Interpretation in favor of the debtor

Ambiguous clauses must be interpreted in favor of the debtor (favor debitoris). But the ambiguous or obscure clauses that have been extended or dictated by one of the parties, creditor or debtor, will be interpreted against it, provided that the ambiguity comes from its lack of explanation. The foregoing, reflects an ancient Roman rule (interpretatio contra stipulator), its foundation is found in the principle of responsibility, which imposes the burden of speaking clearly. Thus the obscurity of the pact must harm the declarer. The generality of consumer defense laws establish that when in doubt it must be interpreted in favor of the consumer.

Theory of unpredictability

The theory of unpredictability is also applied to contracts, in the event that, due to radical changes in the general economic conditions, the satisfaction of the contract becomes excessively burdensome, and the conditions of the contract must be adjusted so that they are fulfilled. resemble what the parties originally had in mind.

Formation of the contract

It is a question here of analyzing those acts, causes, events, requirements and forms that, instantaneously or successively, have to come together for the perfection and fulfillment of the contract.

Memorial of wills

The contract requires the unequivocal manifestation of the will of the parties that will make up the legal act. Thus, when the contracting parties express their will at the time the contract is formed, it is called between present. When the manifestation of the will occurs at different times, it is called between absentees. The distinction is important to be able to determine exactly the moment in which the contract enters into the legal life of the contracting parties. The contract between those present shall enter into force at the time of the simultaneous manifestation of the will, while the contract between those absent only until the last contracting party has given his manifestation.

Offer and acceptance

• La offer is a unilateral manifestation of will, addressed to another. The classic example is that of retail trade that offers its products to anyone, at a certain price. The offer is mandatory, that is, once issued, the proponent cannot modify it at the time of acceptance of the subject concerned.
• La acceptance the offer must be explicit, so that the other contractor must show his express or tacit consent, so that he indicates his unequivocal intention to accept the offer and to adhere to the conditions of the offeror.

The mandatory validity of the offer varies in the different legal systems. For some, the offeror can vary the offer while it has not been accepted; On the other hand, in others, the offer must remain intact for the entire period that, usually or legally, the contracting party is recognized to accept it.

Acceptance in the contract between absent/distant persons

There are various theories regarding the moment in which a contract displays its legal effects when dealing with parties that are physically distanced from each other. Various theories converge:

• Theory of the emission: He understands that the offer is accepted at the time of acceptance of the acceptant.
• Theory of Remission (or Expedition): Acceptance occurs at the time the acceptance is accepted and the acceptance is given to the offeror.
• Theory of the reception: Acceptance would occur in this case after the acceptance, referral and arrival of the latter to the area where the offender performs his activity (business, domicile, etc.).
• Theory of Knowledge: It requires acceptance, referral, arrival in the field and also knowledge of it. The Spanish doctrine is inclined by the theory of Receptiondespite the knowledge be stricter (see case law, or the Automation Act).

Pre-contractual stage

The purpose of the pre-contract is the preparation of a future contract. Three different types of pre-contract can be identified:

• The contrahendo pact. Persons are obliged to carry out negotiations that result in a future contract. They cannot break the negotiations arbitrarily without incurring contractual responsibility.
• The unilateral promise accepted. A subject submits an offer for a future contract to another subject, who supports studying it and deciding whether to accept or reject it. The offerer agrees not to withdraw the offer for a specified period of time. Only the offerer is bound in this covenant. The commercial proposal is a typical example of this type of precontract, where the offeror company undertakes to keep the offer intact for a certain period, for example, 30 days.
• Bilateral or reciprocal promise.

Elements of the contract

The contract has all the elements and requirements of a legal act that are personal elements, real elements and formal elements.

Essentials

Basically there are three requirements that, in almost all legal systems, are required by law to achieve the effectiveness of the contract: consent, object and cause.

Consent

It is the volitional element, the internal will, the will that, manifested under consent, produces legal effects. The perfection of the contract requires that the consent be given freely by all parties involved, by reason or effect of the principle of relativity of contracts. The will is externalized by the successive concurrence of the offer and the acceptance, in relation to the thing and the cause that are to constitute the contract. Improper consent will be null and void, due to having been given by mistake, with violence or intimidation, or intent, or by a person other than the object of the contract.

The vices of consent

The absence of defects in the consent is essential for the validity and effectiveness of the contract, for which purpose it is required that the will not be pressured by external factors that modify the true intention. The most prominent vices of consent are: (a) error, (b) violence and (c) intent.

• (a) The error: When you see errorThere is a mistake about the object of the contract, or on any of its essential aspects. The error is a nullity of the contract when it falls on the nature of the contract (I wanted to make a lease and made a sale), on the identity of the object, or on the specific qualities of the thing.

The error should not be made in bad faith, because otherwise, it becomes fraud.

• (b) Force or violence: In violence, an irresistible force is exercised that causes a serious fear of one of the parties to the contract, or that one of the parties has abused the weakness of the other. The threat of appeal to a judicial authority to claim a right is not coercion, unless it abusively threatens this right.

• (c) Dolo: All means of art, fraudulent or contrary to good faith, used for the purpose of cheating, or confusing, to induce a person to consent to a contract that, if he had known the truth, would not have accepted it, is considered dolo. The dolo victim can maintain the contract and claim damages.

Object

All things that are not outside the trade of men can be the object of contracts, even future things. All services that are not contrary to the law, morality, good customs or public order may also be the subject of a contract.

Cause

Normally, the civil regulations of legal systems require that there be just cause for the birth of legal acts. The cause is the determining reason that led the parties to enter into the contract. A contract has no cause when the manifestations of will do not correspond to the social function that it must fulfill, nor when a cause is simulated or feigned. The contract must have cause and this must be existing, true and lawful.

• Source: it is the origin or legal act that generates obligations or a legal act.
• Cause: It is the purpose or purpose pursued by the parties in carrying out the act or legal business.

The cause problem revolves around the 'end cause'. There have been discrepancies and debates that are still active about whether the final cause should be considered as an essential element of legal acts. Apparently, due to the wording of Art. 944 of the CC, it should be. For those who consider that the end cause should not be part of the essential elements of the legal act, they express that it is confused with its object or with their consent. This position affirms that the essential elements of the business are: subject, object and form. But for those who consider that the end cause is part of the legal business, they distinguish:

• The object: as the matter on which the legal act or the facts, things and;
• The cause: as the purpose is taken into account or in view by the parties when they celebrate the business.

Theory of Cause

• Difficulty.
• Apparition of the cause problem in the field of law.

The causalist doctrine of Domat and Pothier

Jean Domat was the first to develop the causalist theory of obligations, he maintained that the cause of obligations resided in the consideration exercised by one person in relation to another. His doctrine was followed and disseminated by his disciple Robert-Joseph Pothier, and which was later collected by the French Civil Code of 1804. These causalists distinguished synallagmatic contracts from real, unilateral contracts and those of free titles. Domat and Pothier required as an element for the validity of a contract "a legal cause in the obligation."

The anti-causalism of Ernst, Laurent, Planiol and the great European civil scientists

When the French doctrine of causalism was at its peak, in 1826 an essay by the Belgian A.-N.-J. Ernst, titled "The cause is an essential element of the contractual obligation". His idea is specified in the following hypothesis: "If the cause in onerous contracts is what each of the parties respectively owes to the other, it is confused with the object of the convention, and therefore, it is useless to make two different elements of one and the same thing and demand four conditions: will, capacity, object and cause, when in reality there are only three. If in gratuitous contracts the cause lies in the freedom of the benefactor, it is not true that this is by itself an external condition of the existence of such contracts. A feeling that encourages the donor cannot be separated from the will that he expresses, to make it an element of the contract.

Planiol affirms that: «The cause is false and useless». It is false because if it is said that in bilateral contracts the cause of the obligation of one of the parties is the provision of the other, it forgets that the provision and the obligation arise at the same time and it is not possible for one thing to be the cause of the obligation. other. To these theories the majority of French and European causalists have turned.

The neocausalist reaction of Henri Capitant, Maury and Josserand

At the end of the 19th century and beginning of the 20th, neocausalists appeared. Indeed, Henri Capitant, Jacques Maury and Louis Josserand have revived the theories of Domat and Pothier. The neocausalists were objectivists, they maintained that the cause element is essentially a psychological factor, they conceive the cause as the specific end, the purpose, the interest that induces the parties to contract, the immediate and determining end that they have had in view. There is no will without interest. Modern codes have suppressed the cause in their legislation, others have instead incorporated it, but there is a marked interest in suppressing it from current codes.

Dalmacio Vélez Sársfield

The case in the recent Civil Code (Argentina)

In general terms, we can affirm that the Argentine Civil Code alludes to the cause, in its art. 417, when it provides that: Obligations derive from any of the sources established by law. As can be seen, this article incorporates a causal notion of obligations. Now, when we talk about the cause in the new code, it can be said that practically nothing has changed in relation to its predecessor, we are referring to the Vélez Sarfield code.

Personal Items

The subjects of the contract can be natural (physical) or legal persons, with the capacity to act in law, necessary to be bound. In this sense, then, the capacity in law is subdivided into capacity to enjoy (the legal capacity to be the holder of subjective rights, commonly also referred to as legal capacity) and capacity to exercise or act (legal capacity to exercise rights and incur obligations without the assistance or representation of third parties, also known as capacity to act).

Real Elements

They comprise the so-called benefits and consideration, that is, the thing or service that is the object of the contract, on the one hand, and the delivery in exchange for it of a sum of money, or other agreement, by another.

Formal elements

The form is the set of signs through which the consent of the parties in the execution of a contract is manifested. In some contracts it is possible that a specific form of celebration is required. For example, the written form, the signature before a notary or before a notary and before witnesses, etc. may be necessary. In the case of the written form, the document may include the following sections: background or recitals, declarations and clauses.

Accidental Elements

They are those that the parties establish by special clauses, which are not contrary to the law, morality, good customs, or public order. For example: the term, condition, manner, solidarity, indivisibility, representation, etc. In line with the autonomy of the will, the contracting parties can establish the pacts, clauses and conditions that they deem convenient, as long as they are not contrary to the law, morality, good uses and customs, or public order.

Form of contracts

The form can sometimes be a determinant of the validity and effectiveness of the contracts. Contracts can be oral or written; verbal, if its content is preserved only in the memory of the participants, or written, if its content has been transformed into a grammatical text reflected or recorded on a permanent and durable medium (paper, visual or sound magnetic tape, CD, DVD, PD, etc.) that allows its reading and exact reproduction later.

Contracts that are electronic or digital (those that are not signed on paper) have the same validity as any other contract as indicated in the UNCITRAL Model Law on electronic commerce in articles 5 and 11.

Written contracts can also be solemn or not, depending on whether they must be formalized in a notarial public deed, and even if the law requires their registration in some type of registry public (Property Registry, Mercantile Registry, Registry of Cooperatives, Registry of collaborating urban entities, etc.). In the so-called real contracts, the perfection of their form also requires the delivery of the thing (for example, the loan, even if it is collected in a public deed, this does not arise if the loaned capital is not delivered in the act of signing the contract)..

Contract font size

In some States of the European Union there is a regulation on the font size of contracts with consumers (e.g. Spain, France, Portugal).

The font size of the contracts is a validity requirement that is included in the accessibility and legibility of the general contracting conditions with consumers. In Spain it is regulated in article 80.1.b) of the Consolidated Text of the General Law of Consumers and Users. If the letter does not have the legal minimum size established, the contract or general condition without the legal size is null or there is no so-called "incorporation" of the overall condition.

The font size of the contracts is usually regulated in typographic point and/or in millimeters. To understand the equivalence, the convention is that a 1 typographic point is equivalent to 0.3527mm. In Spain, the font size of the contract may not be less than 2.5 millimeters (equivalent to a size 7 in typographic point), according to the equivalence 1 typographic point = 0.3527mm) from June 1, 2022; until the arrival of that date, the minimum font size is 1.5 millimeters.

Classification of contracts

The following are the most common classes, on which the doctrine is consistent, and which are:

Unilateral and bilateral contracts

• Unilateral contract: it is an agreement of wills that generates obligations only for one party.
• Bilateral contract: is the agreement of wills that gives birth to obligations for both parties.

Importance of classification

• Where there are obligations under a unilateral contract that involve the transfer of a thing, if it is destroyed by a fortuitous case or force majeure, it is necessary to establish who should suffer the loss. The thing always perishes for the creditor (in the translative contracts of domain the creditor is the owner; while in the translative contracts of use, the creditor to the restitution is the owner and the thing perishes for him). If the contract was bilateral, there would be no possibility of raising the problem, because this question presupposes that being the mutual obligations, a party fails to deliver the matter, by a case of force majeure and in response to this the other party must comply, as the default of the debtor is not imputable.
• Exception of unfulfilled contract (exceptio non adimpleti). In all bilateral contracts, which generate reciprocal obligations, when a party fails or fails to comply, it does not have the right to require the other party to comply with its obligation, and if in spite of this it intends to demand judicial compliance with a lawsuit, the defendant will object to the exception of unfulfilled contract (principle "the mora purga la mora"). Exceptio non adimpleti cannot be presented in unilateral contracts, for a simple reason that in them only one party is bound, and if it does not comply, the other may judicially require such compliance, without it being able to oppose such an exception, as it has no obligation to perform.

Onerous and free contracts

• Onerous contract: is the one in which there are reciprocal benefits and levies, in this there is an equivalent sacrifice that the parties make (equivalence in reciprocal benefits); for example, the sale, because the seller receives the profit of the price and at the same time delivers the thing, and vice versa, the buyer receives the benefit of receiving the thing and the tax to pay.
• Free contract: it is intended only for the usefulness of one of the two parts, suffering the other the gravel. It is free, therefore, that contract in which the profit is for one of the parties, such as the asdato.

Commutative and Random Contracts

This classification only applies to bilateral contracts.

• Switching contract: is that contract in which the benefits that the parties are due from the moment the legal act is celebrated, a very clear example is the contract of sale of a house.
• Random contracts: is the one that arises when the benefit depends on a future and uncertain event and at the time of hiring, the profits or losses are not known until the time this future event takes place. Examples are the contract of sale of harvest called "hope", bets, games, etc.

Among the common characteristics of random contracts are:

• The uncertainty about the existence of a fact, as in the bet, or about the time of the realization of that fact (when).
• The opposition and not only the interdependence of benefits, because when uncertainty ceases, forcibly one of the parties wins and the other loses, and, moreover, the measure of the gain of one of the parties is the measure of the loss of the other.

It is important to point out that the Dictionary of the Spanish language defines the term aleatoro, from the Latin aleatorius which means, typical of the game of dice, adj. Belonging or relating to gambling.

Main and accessory contracts

• Main contract: it is the one who exists by himself, while the accessories are those that depend on a main contract. The accessories follow the luck of the main because the nullity or absence of the first ones in turn originates the nullity or absence of the accessory contract.
• Contracts: they are also called "guarantee", because they are generally constituted to guarantee the fulfillment of an obligation that is repaid principal, and in this form of guarantee can be personal, such as the bond, in which a person is obliged to pay for the debtor, if he does not; or real, such as the mortgage, the garment, in which a real right is constituted on an alienable good, to guarantee the fulfillment of an obligation and its preference in payment.

The rule that the accessory follows the fate of the principal, suffers in certain cases exceptions, because the accessory contract could not exist, without previously constituting the principal; However, the Law presents us with cases where there may be a bond, pledge or mortgage, without there being a principal obligation yet, as occurs when future or conditional obligations are guaranteed.

Instant and successive contracts

• Instant contractsor unique tract, are those that are fulfilled at the same time they are celebrated, that is, their fulfillment takes place in one act.
• Successive Tract Contract: is the one in which the performance is performed in a given period, and that, by the desire of the parties, can be extended to meet their primary needs and these terms may be:
  • (a) Continuing execution: single execution but without interruption.
  • (b) Recurrent execution: several benefits that are executed on established dates.
  • (c) Intermittent execution: given when requested by the other party.

Characteristics of the executions are: The execution is autonomous from the others, so each act is autonomous. There is a retroactivity for each legal act carried out. If an unlawful element is presented, what proceeds is to cancel any service already made.

Consensual and real contract

• Consensual contractGenerally, the consent of the parties is sufficient to form the contract; the obligations are born as soon as the parties have agreed. The consent of the parties may be manifested in any way. However, it is necessary that the willingness to engage magazine in a particular form, which allows it to know its existence. It is not the mere coexistence of two internal wills that constitute the contract; it is necessary for them to manifest themselves abroad.
• Real contract: it is concluded from the moment one of the parties has made to the other the tradition or the surrender of the thing on which the contract is concerned.

Formal, solemn or non-solemn, and non-formal contract

• Formal contract: is the one in which the law orders the consent to be manifested by a certain means for the contract to be valid. The law accepts an eclectic or mixed system with respect to formalities, because in principle the contract is considered to be consensual, and only when the legislator imposes a particular formality it must be fulfilled, because otherwise the act will be null and void. For example, the sale of properties to be granted by public writing.
• Solemn formal contract: is the one who, in addition to the manifestation of consent by a specific means, requires certain rites stipulated by law to produce its own effects. Vg. Marriage and divorce
  • The formalities will be ad probationem when they must be carried out in order to demonstrate the holding of an act; it is usually to perform the act before a notary or public official to that effect.
  • The formalities will be ad solemnitatem when the will of the parties, by legal requirement, requires a particular formality without which the contract has no legal effectiveness.

The distinction between formal and solemn contracts is related to the sanction. The lack of form originates the relative nullity, or failing that, the unenforceability before third parties; the lack of solemnity causes non-existence.

Private and public contract

This classification meets two quite different criteria:

(1) According to the publicity or professional intervention in the contract:

• Private contract: is made by the persons involved in a contract with or without professional advice. It will have the same value as public writing among the people who subscribe to them and their survivors.
• Public contract: are contracts authorized by public officials or employees, always within the scope of their competencies, has a better probation status. Notary documents are those that are of greater importance and within them mainly public writings.

(2) According to the quality of the subjects involved:

• Private contract: it is the one carried out between natural or legal persons, whether public or private, in which there is relative contractual equality, not having powers that one may impose on the other.
• Public or administrative contracts: it is celebrated between the State or a public body and a natural or legal person, where the first of them maintains a number of powers over the second, called exorbitantswho put this in subordination to that one.

Nominated or typical and unnamed or atypical contract

• Nominated contract or typical: is the contract that is provided for and regulated by law. Therefore, in the absence of agreement between the parties, there are operative rules to be addressed. (Business, leases...)
• Unnamed contract or atypical: is the one for which the law does not have a specific name, because its characteristics are not regulated by it. It can be a hybrid between several contracts or even a completely new one. In order to complete the gaps in the law or situations not foreseen by the parties to the contract, it is necessary to apply to the regulation of similar or similar contracts.

It is important to mention that unnamed contracts are not those that are not provided for by the Civil Code, because all contracts are; They are simply those that are not expressly defined in its articles, although, without prejudice to the fact that the parties expressly define them at the time of contracting, within the framework of their autonomy of will.

Contracts determined only in their gender

They are those in which only mention is made of the quantity and quality of the object of the contract, for example: the sale of 100 metric tons of soybeans. As can be seen, the soybean is not being indicated, in this case it must be presumed that the quality is average.

For your publicity

• Public: when they are performed under the authority of notaries or judges.
• Private: these are the contracts granted by the contracting parties without the authorization or existence of a public federation, although they may have the presence of witnesses.

Main types of contracts

The number of types of contracts that a legal system that has freedom of contract can offer is unlimited, as are the almost infinite rights and obligations that the parties can create, including doing so purely and simply, or subject to some modality. However, the civil legislation of most countries has regulated the most important of these, either in their respective Civil Codes, or in special laws, creating a system of typical contracts or nominated, whose essential regulation is contained in the law and is removed from the parties of the contract, for purposes of security, protection and balance between the eventual subjects. The "typicity of contracts" is made effective through the "principle of integration of the contract", applied either according to the formulation that the parties have attributed to their contract, or as deduced from the content of the clauses of the text, if the terms in which the contract was formulated by the parties were obscure.

Regulation by country

Country	Civil Code	Trade Code	Other Laws	Notes
Argentina	Book II, Section III		Consumer Defence Act (24,240)	--
BoliviaBolivia	Book III, Part II, Parts I and II		--
ColombiaColombia	[1]	https://web.archive.org/web/20131212043737/http://www.secretariasenado.gov.co/senado/basedoc/codigo/codigo_comercio.html		- cod com art. 864
ChileChile	Book IV	Book II	Consumer Rights Act	--
Costa RicaCosta Rica	Book IV			--
CubaCuba	Book III			--
EcuadorEcuador	Parts XXII to XXXI			--
El SalvadorEl Salvador	Book IV			--
SpainSpain	Book IV, Part II	Book I, Part IV and Book II	Law 7/1998 on General Conditions of Recruitment Law 34/2002 of 11 July on Information Society and Electronic Commerce Services Part IV Act No. 30/2007 of 30 October on Public Sector Contracts	--
HondurasHonduras				--
Mexico Mexico	Book IV, Part I, Part I			--
NicaraguaNicaragua	Book III, Title I, Chapter X			--
Panama Panama		Book I, Title XVIII, Chapter I		--
Paraguay Paraguay	Book III			--
Peru Peru	Book VII			--
Puerto RicoPuerto Rico	Articles 1206 to 1786			--
Dominican RepublicDominican Republic	Articles 1101 and			--
Uruguay Uruguay	Book IV, Part II		Consumer Relations Act (Act No. 17.250)	--
Venezuela Venezuela	Part III, Chapter I, Section I			--

Note: only the most relevant legal bodies are mentioned.

Effects of contracts

Effects between the parties

"The contract is law between the parties" it is a common expression (contractus lex). However, this does not mean that contracts have a power equivalent to that of the laws. The fundamental precepts arising from the contracts, which the parties involved must observe will be the following: The parties must comply with the conditions stipulated in the contract (principle of literality). The conditions and effects of the contract only have effect between the parties that accepted the contract, and their successors in title (principle of relativity of the contract). The agreements contained in the contracts must be executed in the terms that were signed. The stipulations of the typical contracts, which were contrary to the law, are considered not to be established. The legal provisions recognize the contract as a source of obligations. Contractual obligations are civil obligations, so the creditor can demand from the debtor the satisfaction of the debt as agreed. In the event that compliance with the object of the obligation is not possible, by equivalence, the creditor may demand compensation for damages. Once a contract has been validly born, it becomes inalienable, and the obligations originated by the valid contract cannot be modified unilaterally.

Effects on third parties

In principle, contracts only have effects between the parties that form it. However, there are contracts that do have effects on third parties. A third party is a subject who did not participate in the formation of the contractual bond, and therefore did not express his will to the contract. It may even be that the third party did not even know of the existence of the agreement.

Third parties necessarily involved

(a) Effects regarding the successors in title.- The affirmation that the contracts bind the heirs will depend fundamentally on the notion of succession that is handled in the system law in which an opinion is issued. Thus, in legal systems such as the Costa Rican and the Peruvian, the confusion of patrimonies does not operate, that is, the hereditary patrimony is responsible for the obligations of the deceased and not the patrimony of the heirs. On the other hand, in legal systems such as the Italian, confusion of assets occurs, whereby the heirs are even liable with their own assets for the obligations of their deceased (unless they accept with the benefit of inventory, if is that such an option exists).

The nullity of the contracts of the deceased after the succession affect the successors, since they may find themselves in the situation of having to repay third parties. Additionally, individual successors will be affected by the restrictions imposed by the successor, for example, a mortgage, an easement or a usufruct right in favor of another.

(b) Effects with respect to unsecured creditors.- Any contract of the debtor that affects his assets implies a consequence for the guarantee of the unsecured creditor. To protect it, the oblique action and the Paulian action have been established, however, each of them can only be invoked under certain conditions. Namely, the oblique action can only be exercised by the creditor due to the inaction of the debtor in the protection of his own patrimony, and the Paulian action can only be exercised against a debtor who is in a state of insolvency.

(c) Effects regarding penitus extranei.- The penitus extranei are all those persons outside a contractual relationship. Even so, the effects of the contracts are opposable before these third parties, since they cannot claim ignorance of the legal act and its effects, as would be the case of real or personal rights registered in a public registry with legal validity, marriage agreements, and the Registration of civil or commercial companies.

Third parties voluntarily involved by the parties

In principle, obligations cannot be assigned to subjects who have not participated and consented to the formation of the legal relationship. But different is the case of the constitution of benefits on behalf of third parties.

Warranty

Used as a method to obtain legal certainty, in a generic sense, the guarantee is one of the consequences of contracts, especially onerous transfers, inasmuch as its existence attributes to the parties the undoubted power to acquire, occupy, demand or maintain the transmitted real or personal right, usable both against the person who has transmitted it, and against third parties, who therefore must cease persecution of the same object of the contract, so that, by virtue of it, the subject may persist in peaceful enjoyment of the benefit, or of the patrimony, obtained through the contract. The most ostensible proof of the contract protection system is found in the "remediation by eviction" and the "remediation for hidden defects" to which the transferors are legally subject in a contract, a point of protection is originated with which that in the event that the acquirer is deprived of the object by claiming action of a subject with a better title of right (reipersecutoriality), the "guarantee for eviction" comes into play and the alienator must return not only the value of the thing, but also the legal expenses of the contract and of the action taken to the contrary, if applicable. In the same way it happens with the "hidden vices" of the good transmitted. So, one thing is the "guarantee of the contracts " and another is the "guarantee contracts ". The latter themselves contain the two virtues, that is, they are a generic guarantee of their content for the subjects who have signed them and also contain as part of their object, the merit of ensuring compliance with another contract or different obligation. Examples of the latter are endorsement contracts, comfort letter, stand-by letter, surety, pledge, mortgage, antichresis, insurance, etc.

Perfection of payment effectiveness

The main elements that concur in an onerous title contract are

1. Debt consolidation. The contract itself.
2. The consolidation of the payment instrument or its effective exercise. The tangible executive elements that give their required residual value.

Otherwise, there is reasonable doubt about the effective fulfillment of the contract, where the creditor bears the burden of proof.

In the practical action of the debtor's payment, it is an exclusive and obligatory function of the creditor to certify that the payment has been made or that the payment is up to date, but the creditor can never become judge and party “iudex et iudices” since this position is “ab absurd”, because it can never decide impartially as a consequence of its own interest. It cannot be the same creditor who determines the position of the debtor, a situation that defines a “testis unus, testis nullus” [sole testimony, null testimony].

As an example, this is the case when an entity that is part of the contract in turn becomes a Judge in determining the payment.

Perfect Debt Consolidation and Payment

There are two formulas to prevent the creditor from being judge and party, not committing partiality, and in turn can demonstrate the existence of his creditor position of a total or partial debt in the signed contract

1. The imperative mediation of a thirdwho receives the payments of the debtor, to make them effective in the creditor. Therefore this third is the true witness that unequivocally bears witness independent and effective to the parties of the state of compliance with the partial or total contract.
2. The emission of the respective documents (letras, levies, etc.) that certify the payment as well as the capacity of the payment exercise by the creditor, when they are in their possession.

Any of these two elements are sufficient for the creditor to attest to compliance with the debtor's obligations, since the first is brought by an independent witness and the second genuine instruments held by the debtor legitimize and irrefutably prove the amount owed.

Of the legitimized intermediary

The intermediary who acts totally impartially by becoming a valid witness eliminates the presumption of “testis unus, testis nullus”, thus perfecting and certifying the argumentative validity of the creditor in all its ambit.

Of the collection instrument

In the absence of an impartial intermediary that accredits the operation, only the collection instrument survives as an element that perfects the executive procedure of the debt that the creditor wants to assert.

In this way, all doubts about the debt are diluted and the creditor possesses all independent evidence without falling into the figure of “judge and party” that makes it impossible for him to make the claim of a claim effective. debt, since any liquidation unilaterally prepared by you, which does not have any legal force since the collection instrument becomes “constituto possessorio” of the debt in question, due to the fact that this obligation is “accesorium sequitur principale” to the debt, among which are the collection instruments, unique for the effective accounting materialization of the payment “ad probationem”, which also establishes the existence of the remainder owed.

It is evident the power of the debtor to dispose of or simply destroy the receipt(s) of these obligations to the effect that they are not appropriated by third parties or due to the risk of falling into the hands of the creditor and the creditor is entitled to exercise the collection of said instrument.

There is no different way for the creditor to make a collection claim, in the absence of said instrumentation.

Uncertain IT qualification - Loss of Right by omission

The development of information technology has left gaps in matters of Law, imposing the technique as a validator of a Judicial process.

It is an erroneous condition to establish that the computerized method is sufficient proof, as if it were an impartial third-party intermediary. But it should not be forgotten that it is totally plausible to errors, but much more important is to consider that for the purposes of legal doctrine, it continues to be one-sided proof, even if its speed of processing and versatility impresses.

Unfortunately this is not the case, it does not perfect collection elements but instead leads to an irregular treatment of the law, when on the contrary, computer processing is precisely the ideal means to facilitate the issuance of instruments collection, simplifying this by its automatic issuance.

Invalidity of credit execution due to lack of instruments

The legal truth is that the lack of the figure of the impartial intermediary as overseer and its certification, as well as the lack of collection instruments, makes the collection certification invalid “in natura”, the creditor intending to use only its own information and accounting entries, whether or not it is systematized by computer or by other means.

Under no circumstances, regardless of the manual or technological means, can the creditor be a Judge and part of a process.

On the other hand, when in each payment the creditor delivers the promissory note or the bill to the debtor, in this act the obligation of a quota, final payment, partial payment, etc. is extinguished. from the moment there is a contract that supports the obligation and the promissory note or letter that supports the veracity of the payment.

Formal execution

Since there is no impartial intermediary, the issuance of collection instruments is the only valid system, when it is the creditor who intends to execute a debt with a declaration presented at his judgment and value. It is then simply the algebraic sum of the collection instruments in his (creditor's) possession of the consolidated debt. The lack of existence of the collection documents, terminate the obligation, canceling the debt and both parties have a

Contractual liability

The contractual liability is that which arises from the contract (unlike non-contractual liability) and requires that the party (subject) that demands it be bound by a contractual link to the person who owes it. The notion of non-compliance is widely debated in comparative law, however, it can be reduced to three major options. The non-verification tout court of the provision in its materiality, the non-achievement of the committed result and the specification of types of contractual breaches.