3. The Contract

Question 1

Definition autonomy of will

Answer 1

Means that the parties can enter into any kind of contracts, which any object whatsoever as long as they are not against imperative laws.

The autonomy of will reflects the contractual freedom of the parties who can regulate their interests without the interference of the Legal System.

Question 2

Definition contract

Answer 2

Agreement between two or more persons which create rights and obligations between them which are subject to economic valuation.

Question 3

There are no limits to the autonomy of will

Answer 3

FALSE.
There is an only limit to the autonomy of the parties: the covenants agreed cannot be contrary to the law, moral or public order.

Question 4

The principle of autonomy of will is being is being limited nowadays. Why?

Answer 4

The equality of the parties is impeded by one of the contracting parties who impose its conditions to the other (e.g. banks, energy companies…). Thus, the State intervenes to protect the weaker party (e.g. consumer law).

The legislator intervenes in order to:
· Protect the weaker party.
· For reasons of public interest.
· With supplementary rules when they did not specify what they wanted in the beginning.

Question 5

Definition of freedom of form

Answer 5

Contracts are binding between the parties notwithstanding the form in which they are concluded.

Question 6

Types of contracts by the requisites of their form:

Answer 6

1. Consensual: mere consent of the parties. They are the general rule.
2. Real: Joint of consent and the physical delivery.
3. Formal: they require a special form. If such form is not adopted, the contract is null and void.

Question 7

Types of contracts by the nature of the relationships created:

Answer 7

1. Bilateral: obligation of both parties.
2. Unilateral: obligation of one party.

Question 8

Types of contracts by their formation process:

Answer 8

1. Negotiated.
2. Adhesion: contents imposed by one of the contracting parties.

Question 9

Types of contracts by their purpose:

Answer 9

1. Onerous: each of the parties receive something in exchange (it does not matter if it is not equivalent).
   a) Commutative contracts: the equivalence is known and certain.
   b) Contracts of chance: they depend upon a certain event such as insurance, betting,…
2. Gratuitous: it provides gains for the other party for free.
3. Remunerative: contracts where one party gives something or renders a service to another in consideration of a previous or past deed of the other.

Question 10

5. Types of contracts by their regulation:

Answer 10

1. Typical: legal regulation.
2. Non typical: based on the parties will. Ruled by the norms established by the parties but subject to limits.

Question 11

Essential elements of contracts:

Answer 11

1. Consent.
2. Object.
3. Cause.
   (4. Form).

Question 12

A contract lacking any of its essential elements is…

Answer 12

…null and void.

Question 13

Consent:

Answer 13

Has to be declared but not always expressed, and the person giving consent is capable to do so. It must be declared in a free and conscious manner, and it can take place in various ways.

Question 14

Incapable persons and minors not emancipated can give consent.

Answer 14

FALSE. They can’t. Emancipated minors can.

Question 15

What are the vices of consent:

Answer 15

1. Mistake.
2. Violence.
3. Intimidation.
4. Dolus or deceit.

Question 16

Explain mistake:

Answer 16

It has to be proved, as well as be in the subject matter of the contract (be essential).
However, if the mistake is imputable for the person that suffers it, he has to bear it.
The contract shall be annulled if the mistake is provoked.
A mistake on the person shall invalidate the contract only when consideration of the person was the principal cause.

Question 17

Object:

Answer 17

It is the matter dealt.
Rights and future events can be objects of contract.
The object must be real or possible; determined or subject to determination; lawful and subject to trade.

Question 18

Consideration or cause:

Answer 18

Justification of the obligation assumed by the contract. It has to exist and be certain and lawful.
In case of a false cause: nullity (unless it is provoked).
Appearance of contact: null and void:
Undercover contract: valid.

Question 19

Form:

Answer 19

Essential element in formal contracts.
It facilitates the proof but it isn’t necessary for its validity except in formal contacts. The consequence of not following the form is not the nullity of the contract, but the possibility of any of the parties to ask for that form to be adopted.

Question 20

Accidental elements:

Answer 20

Parties include them to limit or modify the contract:
1. Condition.
2. Term.
3. Modus.

Question 21

What is the accidental element of modus:?

Answer 21

It is the established burden for the person favoured by the contract has to suffer, only in gratuitous attributions such as donations or legates.

Question 22

Natural elements:

Answer 22

They normally appear but can be altered or excluded by parties.

Question 24

Offers made through automatical devices:

Answer 24

They shall be valid during the time set by the offeror or during the time the offer is accessible.
The offeror can assume the obligation to maintain the offer for a certain period of time, he cannot revoke until the time finishes.

Question 25

At distance, there is consent from the moment…

Answer 25

…in which the offeror knows of the acceptance or should have known in good faith.

Question 26

E-commerce law:

Answer 26

there is consent from the moment in which acceptance is declared.

Question 27

To fight against the abuses of adhesion contracts there are anti-abuse mechanisms set by the law:

Answer 27

· Consumer Protection Law (only applicable to those contracts in which a part is a consumer): forbids certain clauses such as excessive duration; clauses not negotiated are interpreted to benefit the consumer; abusive clauses are considered null.
· Law on General Conditions of Sale (applicable to all contracts): General conditions must be clear and transparent, and they have to be in favour of the weak party, particular conditions must prevail over the general ones; abusive clauses are considered null and void; clauses not known by the weak party are null as well as clauses not understood.

Question 28

Parties can enter in any type of contracts as long as…

Answer 28

…they are not against imperative laws. The limits are law, moral and public order.