10. Contracts in Particular II

Question 1

What are the characteristics of Contracts of provision of services?

Answer 1

1.Consensus, Bilateral, Onerous.
2. Obligation to use means.
3. Price certain.
4. Duration: might be indefinite but not lifelong.
5. Confidence: in the manner that the profesional is going to provide the service.c

Question 2

The object of contracts of services:

Answer 2

The activity, not the result thereof.

Question 3

Obligations for the party that entrusts the service:

Answer 3

1. Pay.
2. Cooperate.

Question 4

Obligations for the provider of the service:

Answer 4

1. Render the service acting wit the diligence correspondent to his profession.
   In principle, he has to render the service himself because the client is usually thinking on the particular person of the provider of the service when executing the contract. However, assistants can be used if parties so agreed or if the usages accept such.

Question 5

What’s a construction contract (aka contract of work)?

Answer 5

Those through with a person, the contractor or builder, assets assumes the obligation to carry out a work for the benefit or another, the owner, who pays a price for it.

Question 6

Contractors rights and obligations:

Answer 6

1. Right to receive the price agreed.
2. Obligation to preserve and carry out the work as agreed.
3. Obligation to deliver the work on time and under the agreed conditions and to achieve a certain result.

Question 7

Owner’s rights and obligations:

Answer 7

1. Received the agreed work on time and under the conditions agreed.
2. Pay the price.

Question 8

Extinction of contracts of work:

Answer 8

1. Owner desisting from the contract (compensating the contractor for all his expenses, work and for the profit with the owner may have obtained).
2. Contractor’s death.
3. Impossibility of finishing the work.

Question 9

If the work is lost before delivery due to an act of god, who assumes the loss?

Answer 9

The builder, and the owner does not have to pay his the price.

Question 10

If the owner was at fault because he was in a state of delinquency for not having received the thing when due, who has to pay?

Answer 10

The owner.

Question 11

Liabilities Construction law:

Answer 11

The liability of the construction agents (promoter, constructor, architect, building engineer…) is a joint liability.

If the responsible agent can’t be identified, the possible responsible agent shall be joint and severally liable for the defect.

Question 12

Periods of liability in construction contracts:

Answer 12

a) Foundation defects: 10 years.
b) Construction or habitability defects: 3 years.
c) Finishing defects: 1 year (only for construction).

Question 13

What is a mandate?

Answer 13

Contract through which one party, the mandatory, assumes the obligation to perform an act with legal implications for the account or at the request of another, the mandator.

Question 14

What is a mandatory alieno nomine?

Answer 14

The mandatory is acting in the name and on behalf of the mandatory and empowered by him. The effects of the transaction directly affect the mandator.

Question 15

What is a mandatory acting in propio nomine?

Answer 15

The mandatory does not declare that he is acting as such.
The transaction shall only be effective between the mandatory and the third party “unless it concerns things belonging to the mandator”.

Question 16

Obligations of the mandatory:

Answer 16

1. Perform.
2. Respect the limits of the mandate.
3. Follow the mandator’s instructions.
4. Liability for defective performance of his duties.
5. Give account of his transactions.
6. Payment of interests.

Question 17

Obligations of the mandator:

Answer 17

1. Payment of the remuneration.
2. Advance to the mandatory the amounts necessary to perform the mandate: if the mandatory advances such amounts, the mandator has to reimburse them with the interests from the day in which the advance was made.
3. Compensation of damages the mandatory might have suffered in complying the mandate unless he acted negligenclessly.

Question 18

Extinction of the mandate:

Answer 18

1. Revocation by the mandator.
2. Resignation of the mandatory.
3. Death, incapacitation, declaration of prodigality and insolvency of the mandator or the mandatory.

Question 19

What is a partnership?

Answer 19

An artificial person in which several persons get together to undertake an economic activity for profit and share profits.

Question 20

Types of partnerships:

Answer 20

a) Universal:
all existing property is put in common; and everything received as a result of business is going to be distributed.
b) Specific:
Putting in common some things; not everything is of everyone and all gains aren’t distributed among every one.

Question 21

Obligations of the partners:

Answer 21

1. Put in common what was promised.
2. Subordination of individual interest to common interests.

Question 22

Extinction of the partnership:

Answer 22

A process of liquidation has to take place when:
1. Upon expiration of the term.
2. Upon the loss of the object or termination of business constituting its purpose.
3. As a result of death, insolvency, incapacitation or declaration of prodigality of any party.
4. By the will of any of the parties.
5. The impossibility to attain the object of the partnership.