chapter 4 reading Flashcards
contracts
business agreements that must be respected
people enter them voluntarily
create obligations
–> building blocks used to construct contracts
bilateral agreement
three basic requirements in order for obligations to exist
- there must be at least two parties
- the must be a prestation that is the object of the obligation
- there must be a lawful reason for undertaking the obligation
prestation
a payment or performance
the rendering of a service
doing or not doing something
the two way obligations may come into existence
they commonly emerge from contacts, agreements that people enter with each other
they can also arise from an act carried out by someone
legal obligation
one that is sanctioned by law and enforceable before the courts
–> failure to discharge your obligation gives the person to whom you are obligated the right to demand performance and/or damages
natural obligation
one that binds us in conscience only
the most common source of legal obligations in business
the contract
contracts which involve very little negotiation
art. 1379 to 1384
contracts of adhesion
contracts by mutual agreement
synallagmatic or bilateral contracts
unilateral contracts
onerous contracts
gratuitous contracts
commutative contracts
aleatory contracts
contracts of instantaneous performance
contracts of successive performance
consumer contracts
contracts of adhesion art. 1379
the conditions are drawn up only by one of the parties
the only choice available to the other party is to accept these conditions or no to enter into the contract
contracts by mutual agreement art. 1379
both parties discuss and agree on all of the conditions of the contract
synallagmatic or bilateral contracts art. 1380
both parties have agreed to perform an obligation
unilateral contracts art. 1380
one party undertakes to perform an obligation
onerous contracts art. 1381
in which each party receives something in return for undertaking an obligation to the other party
gratuitous contracts art. 1381
the object of which is for the benefit of the person with whom it is made
one party promises to do something without receiving anything in exchange
commutative contracts art. 1382
One in which each of the contracting parties gives and, receives an equivalent
aleatory contracts art. 1382
an agreement whereby the parties involved do not have to perform a particular action until a specific, triggering event occurs
Events are those that cannot be controlled by either party, such as natural disasters and death
Aleatory contracts are commonly used in insurance policies
in which the full extent of the obligation is uncertain at the time the contract is entered into
contracts of instantaneous performance art. 1383
the obligations of party can be executed or rendered at one single point in time
contracts of successive performance art. 1383
a type of contract where the obligations can be executed over a period of time or continuously
ex: rental agreement
consumer contracts art. 1384
legally binding agreement between you and the consumer concerning the sale of goods or digital content
consensus in idem
two people that have a clear meeting of minds
an offer
an expression of readiness to do or give something if desired
a clear, precise, firm proposition containing a genuine intention to enter into a binding contract
will exist when there is a specific merchandise offered for sale
after an offer is made, what creates a contract?
acceptance
–> must be the same terms as the offer
where is the contract made?
wherever the offerer (person that offers the contract) is
essential elements required for the formation of a valid contract according to article 1385 of the Civil Code
- an exchange
- of consents
- between persons
- having the capacity to contract
- in any form, unless a special form is required
- a cause
- and object
when is consent expressed?
art. 1398
when there is clear indication on the part of a person
can also be tacit
tacit
understood or implied without being stated
can an offer be rocked if they gave the offer a certain time period to think about it?
nah bruv
should silence be considered as an acceptance or refusal of an offer?
refusal
the defects of consent that render it invalid
art. 1399
error
fraud
fear
Lesion
error invalidating consent
art. 1400
error in which one party did not fully understand or note all the details of a contract
fraud invalidating consent
art. 1401
closely related to error
–> error induced by fraud
when one person tricks another in making an error or gives untrue information
fear invalidating consent
art. 1402, 1403, 1404
if a person uses fear to extract someone’s consent, it is not real consent
can also be position of authority over another person
lesion invalidating consent
art. 1405, 1406, 1408
comes from roman law and the French expression meaning harm
usually used for economic harm on someone that lacks knowledge
–> for this reason, only applied to people who do no have full legal capacities, such as minors under 14
legal capacity
the authority or right to enter in a contract
people that cannot legally enter in a contract
minors
persons under protective supervision
what does it mean when we say that minors can be emancipated?
they can enter contracts alone
persons under protective supervision
have no legal capacity
over the age of 18 and cannot look for their financial affairs due to physical and/or mental incapacity or disability
when are contract subjects or objects restricted?
when they’re illegal
why are certain contract forms required by law?
to preserve the validity of the contract
when can a contract be declared null?
when they do not meet the conditions of formation discussed
the two degrees of nullity
absolute nullity
relative nullity
absolute nullity
a contract is absolutely null when it contradicts or violates provisions of law deemed of public order and therefore does not meet the conditions of formation
a contract that puts at risk protections of the general public
may not be confirmed or maintained by any party
court can invoke this nullity
relative nullity
A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made
may be confirmed or maintained by the parties
no other party can invoke this nullity
–> must be clearly expressed that they wanna maintain contract
what happens when a co tract is deemed null?
this contract is considered to have never existed
what can the creditor do when we fail to do an obligation of a contract?
- force performance through expense of debtor or by means such of injunction
- have contract annulled by resolution of resiliation
- reduce the scope of his share of related obligations
- refuse to perform his share of the obligations
- hold on to debtor’s property until he is paid for work related to the property
resolution
each party must restore to each other all prestations
the contract is deemed to have never existed
resiliation
the contract ceases to exist for the future with no restoration of prestations
injunction
a judicial order that restrains a person from beginning or continuing an action threatening or invading the legal right of another, or that compels a person to carry out a certain act
Interlocutory injunction
a court order to compel or prevent a party from doing certain acts pending the final determination of the case
It is an order made at an interim stage during the trial, and is usually issued to maintain the status quo until judgment can be made
when is an interlocutory injunction granted?
if the plaintiff demonstrates interest and seriousness of the issue
if it is necessary to avoid irreparable injury before the final judgment
- if the plaintiff will suffer significantly more than the defendant on the balance of convenience
provisional injunction
a provisional equitable remedy by which a court orders a litigant to perform, or refrain from performing, a particular act before the entry of final judgment
in the case of urgency, the plaintiff can request that an injunction be issued before the defendants has received notice of an interlocutory hearing
can last no more than 10 days
prior to taking action against the debtor, the civil code requires to be placed in default
what were the ways this has to be achieved?
by the contract itself
by extrajudicial demand
by operation of law
placed on default by the contract itself
when the debtor fails to perform an obligation by a stipulated deadline
placed on default by extrajudicial demand
the creditor sends the debtor a letter requesting performance within a certain period of time
placed on default by operation of law
the debtor fails to perform an obligation within a useful time, or failed to perform immediately in case of urgency, or where performance becomes impossible due to debtor’s fault
what happens if creditor files legal action against debtor without placing him in default first?
the debtor maintains the right to perform the obligation within a reasonable time
types of damages
present damages Article 1607 to 1611
future damages art. 1611 to 1615
punitive damages art. 1621
penal damages art. 1622 to 1623
present damages
failure on the part of the debtor to fulfill his obligations may result in bodily, moral, or material damages
these damages have to be directly attributed to the fault of the debtor and assessable in their present value
future damages
possible to seek future damages as long as they are certain to take place and are assessable
ex: employee fired for unjustifiable reasons
punitive damages
legal recompense that a defendant found guilty of committing a wrong or offense is ordered to pay on top of compensatory damages
They are awarded by a court of law not to compensate injured plaintiffs but to punish defendants whose conduct is considered grossly negligent or intentional
amount wired cannot surpass purposes of teaching debtor a lessons
penal damages
contractual stipulation that is used as a means of motivating a contracting party to perform obligations
–> failure to perform obligations allows the creditor to claim from the debtor the stipulated amount o damages for default
creditor may not exercise penal clause and require performance from debtor
–> can only do it if the clause is for the purpose of punishing the debtor for Time delays
can be used without having to prove that any actual damages were suffered, unlike other types of damages
classification of contracts
contract of adhesion
an offer to contract art. 1388
a proposal which contains all essential elements of the proposed contract
the offeror signifies his willingness to be bound if it is accepted
art 1390.
an offer to contract may be made to both a determinate or an indeterminate person
true or false
true
art 1390.
an offer to contract may be made to both a determinate or an indeterminate person
true or false
true
art. 1390
a term of acceptance may or may not be attached to an offer to contract
true or false
true
when does an offer lapse?
art. 1392
if no acceptance is received by the offeror before the expiry of the specified term
when no term is specified before the expiry or a reasonable time
death or bankruptcy of the offeror
