He contract It is an "agreement or agreement, oral or written, between parties that are bound by a specific matter or thing, and whose compliance may be compelled," according to the definition of the RAE.
The importance of recruitment in history
Among the first archaic human customs is exchange, which in principle was of agricultural surpluses. New explanations of the beginning of culture account for such an important statement. Contracting is the practice of that exchange through which people are obliged to deliver a good, or to do or not do something in particular.
The commercial customs of the Silk Road and the Phoenicians, for example, had the most important forms of antiquity. Such is the importance of recruitment.
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Due to the undoubted influence of Roman Law, and underpinned by another imperial attitude that was the Napoleonic codification activity, we now have defined, although incessantly changing, a doctrine to conceptualize the contract.
In short, legal systems tend to have areas of intersection in the definition of contracts. Let's say that we can assume the generic definition of contract given by the Napoleonic code as the one that gives rise to what we have in the classical civil law system.
The contract is the form, solemn in some cases, through which people develop their capacities to exchange goods or services. Other codifications emphasize the manifestation of will, which in some cases may be tacit.
Regulation and concept of contract
Contracts are regulated in the Spanish Civil Code, starting from article 1254.
The contract exists when one or more people agree to be bound, with respect to one or more others, to give something or provide some service.
Article 1254 of the Civil Code
What are the elements of the contract?
The following are commonly distinguished between the elements of the contract: subject, object and cause.
These three elements allow us to resolve most of the disputes that the fulfillment or breach of a contract can generate.
There is no contract unless the following requirements are met:
1. Consent of the contracting parties.
2. Certain object that is the subject of the contract.
3. Cause of the obligation that is established.
Article 1261 of the Civil Code
The subject: capacity and consent
It is the contracting person. Who is assumes when contracting the obligation in question, as well as all its consequences.
All issues related to the capacity of persons, regulated by another branch of civil law, have a deep relationship with the definition of the contracting party. In fact, as a first characteristic, A contract must be perfected through the participation of people capable of freely binding themselves.
The manifestation of contractual freedom, a founding institution of liberalism, is essential in the validity of contracts. In this category you can meet two elementary subsectors which the doctrine sometimes treats separately:
- The capacity.
- The consent.
Both concepts are inseparable from the contracting person. Defects that affect one or both qualities of the contracting parties normally render contracts invalid. It makes them null and voidable.
It happens in any case in which consent is given due to error, violence, intimidation, fraud, or a specific intention to cause error in the judgment of the contracting party.
In civil law, there is the general principle according to which everything that is not expressly prohibited is lawful. Legality is precisely the center from which reflections on the object of the contract begin..
Transfers of goods that the law does not exclude from commerce may be validly contracted. Some national legal systems distinguish between what is the transfer of assets, real rights or obligations.
Service contracts do not cease to be contracts insofar as they contain obligations of means or results. To know if we are in the presence of a service contract, its intangibility must be considered, a characteristic that differentiates it from contracts related to goods or products.
Another important characteristic to know if we are in the presence of a contract for goods or a contract for services is the immediacy of consumption; This means that in the service contract the object produced and the consumption are simultaneous, totally or partially.
In the same way, we must understand that the services that are contracted to be provided on a particular occasion will never be fulfilled at another time, and that once the service is provided, the result is the experience and the consequences that these may cause.
Normally associated with the idea of intention when contracting, the will of the contracting party always has a purpose.
In the case of real rights, it is the obtaining of the transfer of ownership of an asset. In others, such as charitable contracts, the intention of the obligor is to fulfill a more abstract purpose.
Manifestation of will and formalities
Contracts can generate immediate consequences only with the expressions of will of the contracting parties, or also require certain formalities for their execution. improvement.
The registration formalities that must be fulfilled so that the contract contained in a document has its entry in the books and protocols, constitute the case that best illustrates the link between said type of contracts and the improvement in the fulfillment of the object. The other depends on one thing.
In many systems, for certain contractual transfers of property, it is the same official who drafts the document that is to have full effect on all persons.
There are regulatory provisions in various legislations on so-called pre-contracts. Precontracts are contractual figures despite their antinomy, that is, even though it may be thought that they are not.
"Buy-sell options" are the classic example of a pre-contract. By virtue of a pre-contract, the obligation to celebrate or perfect another is assumed.
These precontracts They are intended to force the contracting party to sign another contract and its cause is to contribute to the perfection of the sale.
There has been much discussion about its nature, since consent to the sale is usually considered sufficient to be considered completed; When expressing consent to express consent in the future, what is done is to reiterate the meaning of the obligation.
Two great principles informing the contractual issue
In terms of contracts, two great maxims must be kept in mind:
- Pacta sunt servanda: which means that the agreements, contracts, must be fulfilled exactly as they were contracted and signed.
- Rebus sic stantibus: which refers to the fact that contracts have a contextual framework that must be considered in the cases of their compliance or non-compliance. "Things being this way" It is the principle according to which contracts are modified only in the face of alterations that may arise in the context of their fulfillment.
- Leasing contract
- Earnest money contract
- Buy and sell
- Commercial contract
- Marriage contract
- Employment contracts
- relief contract
- Contract for work and service
- Exchange contract