Chapter 5: General Theory Of Contracts Flashcards
Concept of contracts
The contract is an agreement of will between two o more persons, to give something or provide some service
Types of contracts
- Consensual/ Formal
- Obligational/ Real
- Multilateral/ Unilateral
- Onerous/ Gratituous
Consensual contracts
Contracts made with freedom of form
Formal contracts
Need a specific formality
Obligational contracts
Without effecs on things
Real contracts
With effects on things
Multilateral contracts
Create obligations for several parties
Unilateral contracts
Create obligations for just one party
Onerous contracts
Involve consideration
Gratuituous
Not involving consideration
Basic preinciples of contracting
- Principle of autonomy of the will
- Principle of prohibition of the arbirtarity of contractors
- Principle of relativity of contracts
- Obligatory nature of the contract
Principle of autonomy of the will
Liberty to set up a contract without having to conform to any type of patterns
Prohibition of the arbitrary of contractors
No party can alterate the contract by themselves
Relativity of the contract
Contracts only produce effects between the pre-established parties
Obligatory nature of the contract
Contract obliges both parties to what was agreed, but also to all consequences deriving therefrom
Exceptions to the freedom of contract
Parties should be able to freely set the terms of a contract unless:
- Rights are to be modified
- Leases to third parties
- Nuptial agreements
- Inheritance rights
Interpretation of contracts
- If the terms are clear and leave no doubts, there shall be literal interpretation
- intention of the parties shall prevail over the literal meaning
- Facts regarding time and situation of the contract shall be considered
Essential elements of a contract
- Consent
- Object
- Cause
Consent in a contract
Meeting of offer and acceptance
Consent may be defective if:
- There are excusable errors in the object, conditions or qualities of the contract
- There is malice by action or omission
- There is intimidation to get consent
Object in a contract
Thing or service to be provided in a contract
Cause in a contract
The true intention of the parties when entering a contract. It must exist, be true and lawful
Reasons for the termination of a contract
- Nullity
- Annulability
- Resolution
- Rescission
Nullity as a cause for termination
If there is nullity it is considered that the contract never existed. It is produced whenever a contract lacks one of the essential elements