10. Contracts in Particular II Flashcards
What are the characteristics of Contracts of provision of services?
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
The object of contracts of services:
The activity, not the result thereof.
Obligations for the party that entrusts the service:
- Pay.
- Cooperate.
Obligations for the provider of the service:
- 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.
What’s a construction contract (aka contract of work)?
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.
Contractors rights and obligations:
- Right to receive the price agreed.
- Obligation to preserve and carry out the work as agreed.
- Obligation to deliver the work on time and under the agreed conditions and to achieve a certain result.
Owner’s rights and obligations:
- Received the agreed work on time and under the conditions agreed.
- Pay the price.
Extinction of contracts of work:
- Owner desisting from the contract (compensating the contractor for all his expenses, work and for the profit with the owner may have obtained).
- Contractor’s death.
- Impossibility of finishing the work.
If the work is lost before delivery due to an act of god, who assumes the loss?
The builder, and the owner does not have to pay his the price.
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?
The owner.
Liabilities Construction law:
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.
Periods of liability in construction contracts:
a) Foundation defects: 10 years.
b) Construction or habitability defects: 3 years.
c) Finishing defects: 1 year (only for construction).
What is a mandate?
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.
What is a mandatory alieno nomine?
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.
What is a mandatory acting in propio nomine?
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”.