This topic deserves a particular treatment about the legal act or transaction, although with varying intensity depending on whether business or family heritage. The modern doctrine emphasizes the role of private autonomy or autonomy, whether in civil society against the state, whether in the market, compared to the inexorable laws of economics and between the parties that carry out the contract.
From this starting point, we study here the main codes (European - mainly Spanish, French and German codes - and some other Latinamerican ones - mainly Argentine and Chilean) dealing with the historic process of the formation of the autonomy of will in the frame of the private law, mainly in Latinamerica, after the triumph of the independence movements in the region[1], but with special reference to the civil codification in Argentina. As Soriano Cienfuegos[2] says, to this regard, it presupposes the existence of a family of laws which can be situated in the extensive system of codified laws based on the Roman tradition, and within it a Latinamerican group, more or less homogenous, as has already been pointed out by Castán Tobenas and which still remembers the doctrine[3], with the consequence of excluding other experiences of codified law in the Continent[4]. The phenomenon of codification in Latinamerica shares the same concept of 'code' with the European laws of the Continental tradition in the modern age, resulting from the work of the rationalist school of law of the 16[th] to 18[th] Centuries, when the central and western European states undertook the codification of their laws, and afterwards, in Latinamerica, the emancipated countries set themselves the task of reducing the current regulations from a certain branch of law into a single organic unit at a determined historical moment[5].
According to Soriano, in America, it was the triumph of liberalism, fruit of the Illustration, that provided the bases for the codification process, that were the sovereignty of the people, equality, the monopoly of power by the authority, the primacy of the law as the source of rights and constitutionalism[6]. These common bases justify the joint treatment of the codification process in the States, initiated by Haiti and culminated by the 1916 Brazilian code, and up to the present day.
Autonomy means, in the negative, that no one can be deprived of their own property or be required to perform services for others, against their will or independently of it, and in a positive sense, that people can, by an act their will be regular or extinguish property relationships. Each person does not comply, in principle, rather than of their own, and cannot be bound by the will of another if the law does not consent.
According to Pinero[7], what sometimes is called a "crisis of the contract" is nothing more than a "crisis of autonomy", as for example, the right of the parties to determine how they understand their contractual relationship. In this way, Josserand says, "this is not sunset or decline the contract, but of transformation and renewal", but the contract actually is not in crisis, but in its heyday.
Their survival is also given in the legal systems of the socialist world, especially after perestroika, before it, article 200.1, of the Hungarian Code of 1977 provided that "the parties are free to determine the content of the contract" and "may, by mutual agreement, waive the provisions governing it, unless the law provides otherwise".
In other schemes, despite covering a very restricted domain, private contracts were allowed, then, as an instrument, the contract cannot be convicted, as for example, in the Fundamentals of Civil Legislation in the USSR of 1961 (arts. 33 and 34), in the law of the People's Republic of China on Economic Contracts (1981) and in the General Principles of Civil Law of the Republic of China of 1987 (arts. 84 and 85), in the civil code of Cuba of 1987 (sections 309/3129) and, in recent years, Mongol civil code (1994), civil code of Vietnam (1995) and the civil Code of the Russian Federation (1996).
Before the last adjustments to the world of free trade, not existed too many differences with the classical concept. One of them, currently transcribes the Code of the Socialist Republic of Vietnam in 1995, which
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provides that "civil legal transactions" give birth to obligations (art. 13.1), but requires that compliance does not affect "state interests" (art. 13.2).
This often appears as novel or subversive of concepts, is neither original nor is foreign to classical liberalism. According to Rousseau, "we must distinguish natural liberty, which has no limits to individual forces, civil liberty, which is limited by the general freedom", concerning the "common interest" and would be "foolish" argument "I make a covenant with you all the prejudice in favor of you and all of mine, I will fulfill agreement as I please and you will fulfill as I please".
But the autonomy rests on two bases: the freedom of contract, that gives the right to hire or not hire, and the contractual freedom or self-regulation, which gives the right to regulate the contract under their own will. Correspondingly, the autonomy involves two freedoms that should be exercised by mutual agreement of the parties: the freedom to modify the contract, that is to check your terms, and the freedom to terminate the contract, that is, to give terminating the contractual relationship.
Thus, the Argentine legal system recognizes the contracting parties, to enable them to regulate their own interests, the exercise of autonomy in shaping contracts, forming a "rule which must be submitted as the law itself" (art. 1197 of Argentine civil code[8]). Hence, it is logical that the right to intervene in the discipline of private autonomy act in that it does instrument, made available to the parties, to give life and development to legal relationships[9]. The legal discipline overlaps in the contract, the private autonomy, and competition rules of the legal order concurs, to govern the business, with competition operative individuals.
The Spanish civil code contains the autonomy of will and its limits in its article 1255:"The contracting parties can establish the pacts, clauses and conditions that have for convenient whenever they are not contrary to the laws, to the moral neither the public order". What do we understand by against law, moral and public order? Against law, can be understood as a limit about creation, modification and extintion of certain contracts[10]...".
The article 1258 of the Spanish civil Code says :"The contracts are valid by the mere consent, and from then, they not only force to the execution of the specifically conventional thing, but also to all the consequences that, according to their nature, sign according to the good faith, to the use and the law[11]".
In different sentences, the Spanish Supreme Court recognizes the importance of the autonomy or freedom of the parties to contract but always under some restrictions as consequences of a moral status of the society in a certain moment[12] that can change with the progress of that society and the Law must be adapted to the new situations and the new moral even if this supposes a wider restriction of the freedom of carrying out contracts[13]. The Spanish Constitution of 1978, article 33.1, says: "property rights and inheritance rights", with its restrictions in the second paragraph:"The social objectives of these rights will establish the content, according to the Law", and the exceptions of the third paragraph: "Nobody will lose the right over the goods with the exception of a public justification or a social interest, with its economic compensation".
In other European codifications, we can find different positions though sometimes some of them take influence from others. The BGB (book 1°, title 1°) protects the freedom of the parties in its article 138.1°."A contract against good customs is useless...", and 138.2° declares no valid the agreement in which one person takes some patrimonial (and economic) advantages from another and the value of this is much bigger than the object that will be exchanged[14]. The Greek civil Code of 1940 (first book) is based in the German model[15], like the Portuguese civil Code of 1966 and other European Eastern countries[16].
In Hungary, Bulgary and Rumania, legal act represents only a doctrinal creation. In the socialist legislation was preeminent the principle of the real fulfillment of obligations, that meant that the compensation of a sum of money as an equivalent of the result caused by damages, was not admissible, and every kind of agreement must be under the Law, there was no space for free contractual relationships[17]. In Poland, it was important the General Dispositions of Civil Law of 1950 until the publication of the civil Code of 1964 - enacted in 1965 - that contains a special consideration (articles 56 to 65) to any declaration of will as one but the most important of the origins of contracts. Today a civil Code of 1997 is enacted. In the Czech and Slovak republics, the common civil Code of 1964 (chapter four) pay special attention to the concept of legal act. Its importance is contained in article 34: "a) declaration of will b) in order to create, modify or extinguish a right or a duty c) authorized by the civil law d) and produces its effects[18]". After the separation in two different republics, the Czech have published their own civil Code of 2001.
In Russia, the civil Code of 1995 (like the former Code of 1964) contains a category of legal acts that continues with the German tradition[19]. In the Italian Codice of 1942 it is more important the contract that concern with unilateral acts inter vivos with a patrimonial value, as a complement to the contractual system (article 1324)[20]. Betti, considers that the behavior of the parties is more important than
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their will. The Scandinavian countries published their contracts rules during the twentieth century trying to complete and modernize their civil law[21] and was considered important the proposal and the acceptance as two different agreements and not one as in the traditional legal systems. The Austrian civil Code of 1811 (Allgemeines Bürgerliches Gesetzbuch, ABGB) presents a new language since the definition of Rechtsgeschäft. The freedom and restrictions of the parties in the contractual system is basically the same as in the BGB[22]. The Dutch civil codification can be divided in two periods: a) civil code of 1838 based in the napoleonic civil Code that does not consider the contract as a species of the genus legal acts, b) civil Code of 1992 (third book) based on the German idea of legal acts and contracts as can be seen in its second title (articles 32-59)[23].
Among the far Eastern legal systems, the Japanese civil Code of 1898 assumes the German doctrine of Willenserklärung (first book, title four, articles 90 to 137)[24]. It can be divided into two parts: a) a general one which contains dispositions in general and b) specific regulations like the invalidity and inefficacy (chapter two, articles 93 to 98). In this area, the Popular Republic of China presents a new way of evolution that can be seen in the regulation of contracts, that has become more important since the promulgation of the law of commercial contracts of 1981. A new event completed this regulation since 1987 in which a General Principles of Civil Law was published that deals with contracts among private citizens[25].
Let we see some important American civil Codes in Northernamerica as are the civil Code of Quebec of 1994 (that replaces the Code Civil Du Bas Canada), the civil Code of México of 1926 and the civil Code of Louisiana of 1825 (with it most important reform of 1870, repealed by a complete reform of contracts in 1983)[26]. This one and the civil Code of Quebec contain a quite similar regulation of contractual system. The civil Code of Quebec in its 5th book (obligations) , chapter 2°, sections 1° to 3a (articles 1371 and followings and 1398 to 1408) places contracts as a source of obligations, framework in which the consent plays an important rol. On the other hand, the Mexican civil Code, statutes legal acts in several articles (1792 and followings).
In Southernamerica, three codes are outstanding: the Brasilian civil Code (Código civil dos Estados Unidos do Brasil) of 1916 - with important amendments in 2003 -, can be divided into two big parts. Important are the books I, II and III, referred to persons, goods and contracts. The article 81 - book III - gives a classical definition of legal act which is considered as an evolution of the German doctrines.
In Chile and Argentina, legal acts have been considered as a legal category (articles 1437 to 1469 of the Chilean civil Code, and articles 944 to 978 and 1137 to 1166 of the Argentine civil Code, whose article 944 - civil Code of 1871 and modified in 1968 -, says: "Contracts are those declared free and under the law and in order to stablish among people legal relations and create, modify, transfer, maintain or extinguish rights". The Argentine legal system is not an unified private law, although the general theory of contract is particularly civil law, we must recognize the existence of peculiarities in the regulation of contracts in particular, in each of the different branches make private law: civil, commercial, labor, agriculture, mining, shipping and aviation, etc. Vélez included the figure of the act, according to Freitas[27], in Book II, Section II, Title II, as defined (art. 944), classified (arts. 945 and 947), explained its purpose (art. 953) and took particular vices that can affect[28]. Subsequently, the Law 17.711 of 1969 repeal the article 954. It is noteworthy that the regulation of legal act or transaction under Argentine law was halfway, as can be inferred from the mention of the topics covered in the civil code (which is not to disregard the wisdom Vélez Sarsfield methodological). Successive reform projects - Bibiloni, Draft Projects 1936 and 1954 - have tried to fill in some measure with great similarity to each other, the issue of the legal act or transaction, incorporating modalities, representation and extinction legal relations.
The civil code of Portugal goes far beyond the modern doctrine and in the legislative arena, which includes the declaration of intent, form, business improvement, interpretation and integration and vices of the will. Apart from what we said above, among the modern codes continue, some of them, excluding the concept of the legal act or transaction as do the civil Codes of Italy, Switzerland, Mexico and Venezuela, while expressly other codes have embraced the concept, with the name of "legal act", the codes of Brazil (articles 81 and 11), Peru (arts. 1075 et seq.), and China (articles 71 et seq.)[29]. This has not been an obstacle to the construction, by the modern doctrine of a "general theory of legal business" broadly and deeply. Indeed, among the most recent codes mentioned, are the case of the Peru, of 1984, article 140, takes the "legal act", and also in Paraguay, civil code of 1987, article 296 and ss., and in the civil code of Cuba of 1987, article 491.
Thus, the economic substance of the provision, its estimate in money, has become the touchstone, the basis of the rating of the agreements or contractual[30]. The Peruvian civil Code of 1984 refers to the question with more than ninety articles (140 to 232)[31]. In Paraguay, the civil Code of 1987 - and its amendments of
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2001 -, defines the legal act in its articles: 296 to 371. In Cuba the civil Code of 1987 replaces the Spanish[32] of 1889. It is an exception of a tradition in Latinamerican civil law tradition, based on the German model regulation of will, with little exceptions[33].
In this way it is very important the regulation of the article 49 (among others, like: articles 22 and 23 - book I, title I -; articles 45 and 47 - book I, titles III and IV) as an exceptional expression of the legal act. All of them, are examples of contractual relationships (articles 309:"Through a contract a legal act is created or modified or extinguished", and 310:" The contract is perfect since the parties agree in the manifestation of will"). In Ecuador, the article 1480 of the civil Code of 1860 (connected with articles 1488 to 1500) says:"The obligations can have its origin in the manifestation of an agreement among the parties - contracts and bailments -; or from a free act as the acceptation of an inheritance or a legacy and in every quasi-contracts; or from a fact that causes a damage or injury to a person as in case of delicts or quiasi-delicts; or from the disposal of law as in the case of parents and children[34]".
In the field of the elements of the contract, very generic name and somewhat vague, great anarchy reigns, not only as regards the scope or meaning of words but also, which is more important, in terms of knowing what elements up the contract by going to their formation and validity[35]. Some codifications of other countries, unlike Argentina, bring an express provision which lists the essential elements of the contract. Thus the French civil Code, article 1108, lists four "conditions" for the validity of the contract: consent, the object, the cause and the way they are concluded. The Spanish civil code lists in article 1261 the following: the consent, object and the cause. For the Italian civil code are called as "contract requirements" and mentions: the agreement of the parties, the cause, the object and forms ad solemnitatem. From Pothier, who prefers "the distinction that lawyers have made several sixteenth century" make the classification in: things, that a) are of the essence of the contract, b) which are of the nature of the contract and c) which are purely incidental to the contract. Anyway, it has been traditional to distinguish elements depending on the effects on the contracts, as essential, natural, and accidental.
A) Initially named essentialia, essential elements or commune, in the classical doctrine, to those without whom any contract - typical or atypical - are valid. They cannot act on the autonomy. As we said before, the Argentine civil Code do not refer to that, but the French civil Code (art. 1108) listed as such, the consent, the object, the cause and the ability, also reiterate the Chilean civil Code (art. 1445) and the Uruguayan civil Code (art. 1261). But the capacity is consent requirement, so other codes removed from the statement. The essential elements to the Spanish civil Code (art. 1261), are consent, object and the cause, and for the Paraguayan civil Code of 1987, are the consent, object and form (art. 673). In typical contracts, which are those structured by the legislator, we observed in the Argentine civil Code also essential presence, owned or private, established as a discipline imperative: the form of public writing in the contracts referred to, in article 1184 (such as contracts that is had to order the transfer of real estate, civil society contracts, etc.), free in bailment (section 2255), the contributions in society (art. 1648), and so on[36].
B) For the classical doctrine were natural elements those consequences that follow from the nature of the business, even in the silence of the parties[37]. As effects, and natural elements, are imposed by the legal system as supplemental provisions of the will of the parties. Concur spontaneously, without requiring an explicit incorporation in case of not being excluded. They are part of a certain figure or a particular business or group of businesses, but the parties may exercise their contractual freedom ungrudgingly. According to this, for example, in the case of the Argentine civil Code, we can talk about the gratuity, as a natural effect of the mandate (art. 1871), or the final transfer of the property, it is to say, the effect of the tradition of the thing in the sale (arts. 1323 and 1366 on contrary), etc. These effects can refer to pacts, excluding or modifying part of the contract. Atypical contracts are without these effects. The manners and customs, in accordance with art. 17 of the Argentine civil Code, may regulate, as a natural effect, legally unregulated contracts (atypical). We can also take as example the article 1475 of the Spanish civil Code that deals with the eviction or responsability of the seller if a third party wants to get the thing that the buyer has bought; but where the seller, if the buyer agree can have or not that responsability or even wider that normal one..
C) Finally, in the classical conception, those consequences were accidental elements born of the will of the parties, not provided by the legislator, which tend to change, to engraft in a typical business, the abstract figure that the law regulates. Such "accidental elements" belong, also, to the area of the contract. The Argentine encoder has structured some accidental effects of legal act or transaction, such as the so-called modalities: the condition, the term and the charge,
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the penalty clause (art. 652), and so on[38]. Others are merely accidental effects alluded to in the law (arts. 1363 and ss.). The distinction between essential and accidental mere natural effect is particularly interesting and useful in the study of contracts.
Note that although the effects are accidental relative to typical business, are, relative to the particular business, the same constituent and, therefore, essential. Some listed doctrinal presupposition between accidental effects. The latest doctrine emphasizes the importance of normal or natural effects, provided by law, in adherence to contracts clauses predisposed or "addition". The theme returns with the Argentine Consumer Protection Law 24.240, the set of "clauses that denature" the contract or obligations. It preaches that the legislature building in typical contracts, "models of reasonableness" based on laws, whose models can not draw a departure in contracts of adhesion, without justification. In Spain, this is included in the Law of Consumers, in force after the Royal Decree 1/2007, November 16th.
As a counterpart of the classical position, Alterini adds that modern doctrine in Argentina (as for example, did also López de Zavalía), pursuant to the criteria of Carnelutti, who distinguishes between quotes, facts and circumstances of the contract[39] and talk about: a) estimates of the contract. The situations of the contract are extrinsic to the contract requirements, but which determine its effectiveness and measured before him like a prius. In general, are these: the legal will, the capacity, the ability of the object, and legitimation, b) elements of the contract. The elements of the contract, however, are requirements intrinsic constituent of the contract are the terms[40]. Although this designation has parallels with the classic doctrine, differs in its content. Indeed, capacity, traditionally considered part of the contract, since the new approach is encompassed as situation because there regardless of the conclusion of a specific contract, and subsists after such consultation, is, like situation, extrinsic to the contract. The legitimation, another situation, has been recently developed by the civilian doctrine.
Each particular contract has its own elements, so, for instance, the clauses on the thing and the price in a sale. But this rethinking of the issue, however some overlap in terminology such as those noted, has conceptual and logical rigor autonomy and legal (note the difference that mediates treat property as an essential element of the sale, and that a reference to it is an essential term). In this cases are important such situations like:
A) The circumstances of the contract, that are extrinsic, and are relevant for their training and after it, in the course of its execution. Such circumstances, could be the place, the time, the economic circumstances surrounding the contract, affecting, for example, to interpret, or to apply the doctrine of unpredictability. The last and more recent doctrine about unpredictability, modifies the rigor of the principle pacta sunt servanda, as it determines to things being equal - rebus sic stantibus -, that is, things to stay the same way. This principle, known by Roman law, was developed by the commentators, like Bartolo, Baldo, Alciato, etc.; are those who contributed most to delineate the character of the figure. In short, situations and circumstances are extrinsic factors, but those should be valued both as background for contract, they become relevant during the formation and execution of the contract[41]. At the same time, intrinsic or internal elements - clauses - are factors that also are important to be part of the content of contracting.
B) Form and consent. From a modern point of view, can be considered, that the form is a essential requirement from the moment that is an expression of the will of the parties and this consent as constitutes the agreement of the parties, is the contract itself as is the common declaration of will[42].
In the terms we are studying the contract and its content, it is a figure extremely versatile, with high amplitude, and the concept of contract has no the same meaning in the different families or law systems. In the common law countries the concept of contract is more restricted than in civil law countries, where we can find unilateral and bilateral contracts - Code, articles 1102 and 1103. In the common law, contract is used to refer those kind of agreements than in civil law are defined as bilateral contracts and where the consideration - exchanging duties - is essential between the parties. Cheshire and Fifoot, think that in common law, an act that do not implies an exchange is not a contract and it is called as deed or an act under seal - like an unilateral contract in civil law countries -, a formal act that implies an obligation without consideration[43].
Even in civil law countries, the expression and definition of contract could be different. In this way we can find the German doctrine that do not define it (neither do the BGB). But even so, we find some authors that define contract: a) Larenz, who thinks that contract is the agreement among the parties that want to create a right that causes effect to them, b)
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Maynz, that says: "contracts are manifestations of will that can create or extinguish obligations". The difference between this idea of contract and the one in the Italian Codice (article 1321) can be seen in its definition as an "agreement among two or more parties to create or extinguish themselves a legal and patrimonial relationship". Quite similar are the definitions of contract in the socialist and exsocialist republics[44]. All of them have a common element that is the consent or agreement of the parties. This is the reason because Mc Gregor defines the contract in these countries as "an agreement among two or more people which is recognized by the law in the sense of creating, modifying or extinguishing legal acts".
The principle of consent is important in contracts in the common law system that is different compared to civil law. In this last system, there are two main groups: a) romano-germanic system founded in the traditio principle, and b) the French system (receipt in Italy but not in Spain). The principle of non effects of the causa is connected to the traditio in Germany, but not in Austria, showing some differences even in the same group of family law romano-germanic. German law neither accept the category of re contracts (as Austria and France do). In Denmark, for example, the consent is an important requirement and the causa is not included as another one. Even the conclusion of contract in some civil law countries (as France) go beside the common law system and we can appreciate three different groups: a) the validity of contract in the moment of the reception of the consent, b) the importance of the moment of the knowledge and c) the moment of the expedition[45].
Another classic discussion over contracts deals with the concept of convention and contract. Convention would be the "agreement of two or more people on a subject of legal interest" (Aubry-Rau), and contract, is "intended to create or extinguish obligations" (Maynz), so that "all contracts would be a convention but not all convention - but with civil effects - would be a contract" (Demolombe). In the case of the Argentine civil Code, the art. 1137 would content the definition of convention but not contract, which is the point of view of Savigny. Notwithstanding this, the legal definition suggests other comments[46]:
A) Actually not about people but parties. Party who exercises the prerogative own legal, is a center of interest, so it is possible that a part is made up of several people (as when several condominiums sell a thing), or that the same person has the role of two parties (for example, when someone enters into a lease agreement for things like seized the landlord and the tenant). With precisely, article 1247 of the civil Uruguayan code states that "each party can be one or many".
B) The important thing is not the common declaration of will but the consent. The article 1833 of esboco of Freitas, rightly foresaw that no contract "without consent conversely stated", and article 946 of the Argentine civil Code required for the formation of a bilateral legal act, "the unanimous consent of two or more people".
C) The expression regulate rights denotes the intention to be a law of the act itself, it is called the animus contrahendae obligationis. Now, what is the scope of this term? The answers are given, basically, from three points of view.
1. Understand that, by the contract, one can create, modify, transfer or extinguish any kind of rights, whether personal, real or intellectual - wide thesis. Assigned the same concern that the legal act ("establish legal relations between the parties, create, modify, transfer, store or destroy rights", art. 944, Argentine civil Code), except that it must be right to heritage. In other words, contract means the bilateral legal act and heritage. It is noted that a thesis is vast American Convention of Mexico from 1994 on the Law Applicable to International Contracts, which assumes as "contractual obligations" even the "arising out of family law" (art. 5.b).
2. Another different opinion considers that the contract only has ability to create obligations - restrictive thesis. No contract would therefore bilateral legal act that modifies, transferred, or extinguished, or which creates other rights (personal, real or intellectual).
3. The last position we can see is that one which says that the contract can not only create, but also modify, transfer or extinguish obligations, but no other rights, such as real or intellectuals -intermediate thesis-.
So for the Argentine civil Code does any agreement intended to produce legal effects, to regulate rights, is a contract: its object must be capable of a valuable consideration (art. 1169), which defines the heritage field, in the field what obligational (art. 1168), with the amplitude to create, modify, transfer, store or destroy such legal credit obligations (art. 944). Excluding the possibility of setting up or transfer, in an immediate, real legal relations (articles 577 and ss.)
The same issue of Comparative Law shows us a number of codes that avoid defining the contract, without prejudice to point your fingertips in one or more provisions. Thus the German Civil Code, the Swiss civil Code, the Soviet Civil Code, the civil Code of Portugal and others. Other codes define the contract. Most of them are along the lines of the French civil Code, whose article 1101 states: "The contract is the agreement by which one or more persons
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are obliged, with another or others, to give, to do or not do something". A slight variation is found in Mexico, whose 1793 article states: "The agreements that produce or transfer obligations and rights are named for contracts". Meanwhile, Peru's civil Code of 1984 defines in its section 1351: "The contract is an agreement between two or more parties to create, adjust, modify or terminate a legal relationship equity", and the Louisiana Civil Code of 1984, in its article 1906, says: " The contract is an agreement between two or more parties by which they are created, modified or extinguished obligations".
1. To use the words of a great Latinamerican codifier, the objective and content of a civil Code is: "...completely and perfectly that supposes a body of legislation, the removal of customs, the very progress of civilization, political vicissitudes, the immigration of new ideas, precursors of new institutions, scientific discoveries and their applications to the arts and practical life, the abuses introduced by bad faith, fruit of discretion to evade legal precautions, unceasingly lead to rulings that are added to the previous ones, interpreting them, adding them, amending them, repealing them, until at last it becomes necessary to rewrite this confusing mass of different, incoherent and contradictory elements, giving them consistency and harmony and placing them in relation to the living forms of social order[47]".
But among the different civil Codes viewed there are also important differences and treatment of legal aspects of legal acts, autonomy, the elements and concept of contract. With this last point I consider as very precise the idea of the Spanish jurist Puig Pena, who understands that the contract is slightly less than half of regulating rights, "because that object with legal interest must achieve it", so we can get its true scope.
2. The principle of autonomy of will in comparative private law has adopted, basically, the German legal system as we can see in countries like Netherlands, Portugal, Denmark, Iceland, Norway, Finland, Armenia, Poland, Russia, Peru, Brazil, Latvia, Greece, Paraguay, Argentina, Uzbekistan, Kazajistan, etc...
There are some other countries that their legal system is basically the same like in Spain and Italy. Some other legal systems like French, Swiss, Belgium or common law ones, do not recognize that concept of legal act. That is the same in some Latinamerican countries and some islamic countries legal systems that adopted the French or English concepts like Mexico, Guatemala, Cuba, Chile, Bolivia, Colombia, Ecuador, Venezuela, El Salvador, Honduras, Nicaragua, Canada, United Sates, Panama, Jamaica, Belize, Puerto Rico, Philippines, Pakistan, India, etc.
3. We also can see important differences between the codifications of civil law countries - civil law system - and the law in the common law as for example, the real contract in civil law that is not a contract in common law. Mutuum, comodatum, depositum and pignus are not contracts but bailments. The obligation of the bailee is the restitution of the res or to take care of it before its restitution. From the responsability of the bailee does not raise a civil action of the bailor but a real action because of the property of the thing or its possession. The civil law system, let the depositarium or comodatarium to obtain the restitution of the thing because the proof of the contract and not with the proof of the property over the thing or its possession. The donatio - gift - a real contract in civil law is not so in common law. The movable thing that is given with the will of transferring its property makes it a perfect contract. There is no contract because there is no exchange of different things between the two parties and even no deed is required because it is placed by the act by which the thing is given.
4. In addition, to the attempts of reform, especially that of the Argentine code, the most recent initiatives of which include one dating to 1986, according to which, and keeping in mind the Italian model, the unification of the civil code and the commercial code was proposed, stopped by the Government; and that of Colombian code, according to the Draft of the Civil Code by Valencia Zea in 1960, it is necessary to mention the numerous special legislations that in one way or another interfere with the system based on the civil code, such as the codes for minors or childhood, family codes, labor codes, and a regulatory abundance aimed at providing special protection for indigenous people or other groups considered to be vulnerable, such as women and the old aged, or holders of diffused or collective interests, such as consumers. Furthermore, in almost all countries, at least on a doctrinal level, there is a tendency to reduce the separation between civil and commercial matters, specifically caused by the crisis of the notion of the act of trade inherited from Napoleonic legislation. Nor should the commercial alliances and treaties between countries in the same region be ignored insofar as they impose rules and regulations that also modify general civil legislation[48],[49]. ■
NOTES
[1] Regarding private law prior to the formation of the independent nations in the sphere of power of Spain, GARCÍA GALLO, A., "Problemas metodológicos de la historia del derecho indiano", and "La ley como fuente del derecho en Indias en el siglo XVI", both in Estudios de historia del derecho indiano, Instituto Nacional de Estudios Jurídicos, Madrid, 1972
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-vid SORIANO CIENFUEGOS, C., "Circulation of Models and centrality of Civil Codes in Latin American Private Law", (Annual Law Review, Faculty of Law, University of Extremadura, Spain, -printing-).
[2] SORIANO CIENFUEGOS, C., cit.
[3] MOISSET DE ESPANÉS, L., Codificación civil y derecho comparado, Buenos Aires 1994, 297.
[4] Specifically, the treatment of the codes of Quebec and Louisiana is excluded, whether because they do not fit in the same historical process, or because they are inserted in legal ordinances that are radically different to those of the rest of the (Latin American) countries of the Continent. An abundant bibliography exists on these codes, including HAMZA, G., Entstehung und Entwicklung der modernen Privatrechtsordungen und die römischerechtliche Tradition, Eötvös Universitätsverlag, Budapest 2009, 602 ff.
[5] This notion belongs to DE RUGGIERO, R., Instituciones de derecho civil, quoted by GONZALEZ, M. R., "Notas para el estudio del proceso de la codificación civil en México (1821-1928)", in BRAVO LIRA, B. and CONCHA MÁRQUEZ DE LA PLATA, S., Codificación y descodificación en Hispanoamérica, Santiago de Chile 1998, vol. 1, 281.
[6] VÁZQUEZ PANDO, F., "Notas para el estudio de la historia de la codificación del derecho civil en México, de 1810 a 1834", in Jurídica, 4, Mexico, July 1972, 383.
[7] PINERO CASTANÓN, J. Acto y negocio jurídico en el derecho argentino, Cáceres, 1999
[8] Argentine civil Code of 1871.
[9] PINERO CASTANON, J. op. cit.
[10] Moral and public order are mixed in the Spanish civil code, sometimes good custom is used to refer to the same concept. In this way, the article 1271 in its third paragraph says: "to be equally contract object all the services that are not contrary to the laws or to the good custom"; and the article 1328 (impediment, in marriage law) says:"Any stipulation contrary to the laws or to the good custom or limitative of the equality of rights.". The Spanish High Court defines public order as "principles juridical publics and private legal principles about political, moral and economic affairs that are absolutely obligatory for the conservation of the social order in a country and in a certain time".
[11] Other articles which contain some restrictions to the freedom of contracts such as articles 1275 and 1116 say:"The impossible conditions, those contrary to the good custom and the forbidden ones for the law will declare no valid the obligation that comes off of them. The condition of not making an impossible thing has for non setting."
[12] Sentence April 2[nd] 1946:"The principle of autonomy of will is not an absolute one because of its restrictions to the freedom to establish relationships".
[13] Some restrictions can be found in other articles of the Spanish civil Code, like articles 1255 and 1116:"Conditions that are impossible to carry out or that are against good customs or forbidden by the Law, will declare no valid the obligations...". We can find those limits, as well, in lots of statutes like ley de la usura de 1908 and ley de contratos de trabajo de 1944 or ley hipotecaria (text refunded in 1946) and the reglamen to hipotecario (1947, whose last most important modification took place in 1983) and more actual statutes that limit the individual will of contract: Estatuto de los trabajadores (March 10[th] 1980), ley de arrendamientos rústicos (December 31[st] 1980); ley de contrato de seguros (october 8[th] 1980).
[14] The contract will be no valid because the lack of form only when the Law (paragraph 125) or the parties declare it with some exceptions of a partial validity (paragraph 139) or the conversion of an invalid contract (paragraph 140) and the principle of free circulation of goods (paragraph 137).
[15] Includes some aspects like the validity of contracts, representation, prescription and conditions. In the same book of the civil Code (chapter V) deals with the declaration of will as a legal category that unifies different legal acts.
[16] Like the 1867 civil Code, the last one takes lot of German and French legal institutions, but there are sustantial distinction with the BGB like the Portuguese codification (civil Code of 1966 that replaces the 1867 civil Code) does not have a definition of legal act and only declares (article 217) a sentence referred to freedom of will.
[17] In Bulgary, the Law of obligations and contracts says (article 44) that: "the rules over contracts will applied to any unilateral declaration of will if the law let that rights and obligations could grow, modify or extinguish from the absence of them".
[18] Defects of declaration, article 37:"the legal act, could be no valid if it is not concluded freely, seriously, precisely and comprehensively".
[19] The article 153 defines the legal act as "those acts that citizens or organizations make in order to create, modify or extinguish rights or obligations".
[20] In Italy, contract is an instrument to exchange goods an services as a result of the private intervention of the parties.
[21] Contractual Law of Norway of 1918, Law of Sales and Law of Contracts in Sweden (of 1905 and 1915) and Nordic Law of Sales and Principles of Contracts in Denmark (1907 and 1918). In Iceland, there is a Law of Contracts of 1936 and in Finland a Law of 1926.
[22] This model will be receipt in Liechtenstein.
[23] The article 59 se consider that the contract is a will expressed in order to produce a legal effect through a declaration.
[24] The Code, that is divided in five books, has in its first book the general introduction and it is quite similar to BGB.
[25] Its promulgation has its origin in the private property, the market economy and the commercial and contractual relationships. In the article 54 where the legal act is defined in the same way. Most of the socialist and exsocialist republics distinguish between civil law and economical law. The first knows about subjects in which the Estate does not act (private agreements, succession mortis causa in private property). The economic law deals with public dispositions between the Estate and the citizens and public enterprises.
[26] Its more important reform is from 1870.
[27] Dalmacio Velez Sarsfield, editor of the Argentine Civil Code, was inspired by the method of Freitas -it says in the letter of transmittal, Book I-, and the Brazilian jurist, in turn, took Savigny classification of rights that underlies the plan. But Velez followed exactly to Freitas, or the method of its Consolidalo nor in the Esboco, although this is, in large part, to regret.
[28] Simulation (arts. 955-960) and fraud (arts. 961-972) and the form (arts. 973-978), and in Titles VI and VII referred to the invalidity of legal acts.
[29] MOSSET ITURRASPE, J., Contratos, Santa Fe, 1998, p. 12.
[30] MOSSET ITURRASPE, en Código Civil y Normas Complementarias - Análisis Doctrinario y Jurisprudential, Buenos Aires, 1999, T 3B, p. 633.
[31] The article 140 contains a classical definition and requirements of the contract.
[32] Blas Roca said: "It was urgent and necessary the substitution of the old Spanish civil Code by a newer one that could respond to the conception of sovereignity and solve new problems meanwhile the socialism is being built. The old Code was a good one to old problems and relationships between landlord and slaves...the new Code is good for the will of the workers in general and everyone that works with their hands...".
[33] The more important modifications are linked with marriage (no formal one); the original acquirement of the property of goods, the presumption of property and the determination of the damages that are Quantified.
[34] Other south and Central American civil codes in the same way with logic legal difference are the civil Code of
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Uruguay (1868), Bolivia (1976), Venezuela (1982) and Puerto Rico (1930).
[35] MOSSET ITURRASPE, Jorge, Contratos, Santa Fe, 1998, p. 54.
[36] PINERO CASTANON, J. op. cit.
[37] In this case we can see three different possibilities: a) the principle of knowledge, b) the principle of reception c) the principle of acceptation or emission. a) The first is known like the Vernehmungstheorie, principe d l'information or theory of information. According to this principle, the contract between the parties that are separated by a long distance causes effects from the moment which the offeror has known the acceptation of the offeree. The risk of the transmission of the acceptation relapses over the offeree (Article 1262.2 of the Spanish civil Code. The Spanish commercial Code does not continue the civil principle as can be seen in its article 54: "The con tracts made by mail will cause effect form the moment of the positive answer to the proposal") and would be closer to the theory of the simple emission of the acceptation. The same principle is known in Italy (article 1326.1 connected with the article 1335), Honduras (article 1553.2 of the civil Code), Philippines (article 1319 of the civil Code); b) The second principle is known like the Empfangstheorie or théorie de la réception, and declares that the contract causes effects when the acceptation of the offeree arrives to the address of the offeror (A very common principle and accepted in the civil Codes of countries like Austria (paragraph 862[a]), Germany (paragraph 130.1), Mexico (article 1807), Poland (article 70), Russia (article 433.2), Switzerland (article 3.2) and Hungary (article 213); and the risk is assumed by both parties. The offeree will assume the risk until his declaration arrives to the address of the offeror and this one will assume the risk since that moment. c) The principle of the expedition or mail-box rule, means that the contract causes effect since the moment of the simple issue of the acceptance by the offeree even though his has not sent yet the mail which contains this positive desire. An example of this principle are the Argentine civil Code (article 1154), civil Code of Paraguay (article 680), the Swiss Code of obligations (article 10); and the civil Code of Quebec, article 1388 (This principle is known, basically, in common law countries (USA, Liberia, Ghana, Pakistan, India, Canada, Australia, New Zealand, Great Britain, Ireland, etc.) and others that traditionally are included as civil law countries like Spain (commerce Code that differs from the civil Code), France, Italy and Quebec, Albania, Netherlands, Argelia, Egypt, Peru, Venezuela, Honduras, Bolivia, Philippines, etc. Other civil law countries include in their legislation the principle of the reception, which happens in Mexico, Chile, Uruguay, Russia, Poland, Czech and Slovak republics, Germany, Rumania, Hungary, Bulgary, Austria, Greece, Turkey, China, Japan, Baltic countries, Scandinavian countries, etc. A particular exception is Portugal where it is considered valid both reception and knowing principles (articles 224 of the civil Code). In Scotland, nowadays is accepted the idea of the emission of the consent as the sole requirement in order to declare valid a contract (1848, 6. Bell. App 195), although the reception of the letter or fax is recommended (Thomson vs. James) like in English law).
[38] Some authors think that Vélez, in this case, was wrong because this part must be included in legal acts and not in the part of obligations (arts. 527 and ss., 566 and ss., 558 and ss.).
[39] ALTERINI, Atilio Aníbal, CONTRATOS - civiles - comerciales - de consumos - Teoria General, Buenos Aires, 1998, p. 198.
[40] There are more or less the same clauses (essential, natural and accidental) in the Spanish and the Argentine civil codes: 1. Essential is the subject, the object, the cause-effect, and in some cases essential form (art. 1261 and ss. of the Spanish civil Code) 2. Natural, as the guarantee for eviction in the sale (art. 2098 Argentine civil Code and art. 1475 of the Spanish civil Code) 3. Accidental, that is, either as the parties in an extra allowance of law, or in the opposite direction to what she has (for example, a clause in the latter class is the one that provides the guarantee of solvency in the session credits (art. 1476, Argentine civil Code).
[41] The Argentine civil Code, reformed by Law 17.711 of 1968, introduced in the second part of art. 1198 as follows: "In bilateral contracts and the unilateral commutative onerous and commutative delayed or continuous execution, if the provision by one party will turn too onerous, for extraordinary and unforeseeable events, the aggrieved party may demand the termination of the contract". The same principle applies to contracts when random hardship occurs for reasons extraneous to the risk of the contract itself. PINERO CASTANON, J. op. cit.
[42] Art. 1137 of the Argentine civil Code: "There is a con tract when two or more people agree over a common declaration of will concerning their rights".
[43] The requirements consist in a written document with the sign of the offeror with the presence of a witness and the deliver of the document to the beneficiary (it can be seen nowadays in Great Britain through the Law Property Act of 1989, first section). Examples of deed: deed of gift.
[44] For example the definition in the Russian civil Code of 1995.
[45] This is the model in the common law and the French Law.
[46] ALTERINI, A.A., op. cit., p. 7.
[47] BELLO, A., Mensaje del Código Civil, quoted by SCHMIDT HOTT, C., "La constitucionalización del derecho de familia", in MARTINIC, M. D. and TAPIA, M., Sesquicentenario del Código civil de Andrés Bello. Pasado, presente y futuro de la codificación - Universidad de Chile, Facultad de Derecho, vol. II, 1235; vid. SORIANO CIENFUEGOS, cit.
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Lábjegyzetek:
[1] The Author is professor, Faculty of Law University of Extremadura, Spain.
Visszaugrás
