Vicios Consentimiento Navarro Llima Abogados Zaragoza Invalidez Contrato Mercantil

Invalidating defects of consent to a commercial contract

One of the essential requirements for the validity of a contract is, as expressed in Article 1261 CC: The consent of the contracting parties.

Defects of consent may therefore affect the formation of the will when contracting, and may result in the total or partial annulment of the obligations acquired with a flawed will.

Navarro Llima Abogados, specialised in commercial contracts, shares in this blog the various defects of consent of the Civil Code that can be used to invalidate a commercial contract.

Vicios Consentimiento Navarro Llima Abogados Zaragoza Invalidez Contrato Mercantil

What are the defects of consent that invalidate the commercial contract?

We turn to the Civil Code, and more specifically to article 1265 of the CC, which states: “consent given by error, violence, intimidation or fraud shall be null and void”.

Next, we will go into each of the possible defects of consent:

Error of consent

One of the invalidating defects of a commercial contract is the error in consent, which may arise from the contracting persons or from the object of the contract, and must be essential in the formation of the will.

It is regulated in Article 1266 of the CC: “In order for the error to invalidate the consent, it must relate to the substance of the thing that is the object of the contract, or to those conditions of the same that principally gave rise to the conclusion of the contract. Mistake as to the person only invalidates the contract if the consideration of that person was the principal cause of the contract. A simple error of account will only give rise to its correction”.

Consequently, in order for the consent to be annulled, it will be necessary to prove that, if the error had not been made, the contract would not have been concluded.

Vicios Consentimiento Navarro Llima Abogados Zaragoza Invalidez Contrato Mercantil

Violence and intimidation in consent

Another of the invalidating vices of a commercial contract is violence in the consent, which can be physical or psychological, being necessary that the contracting party cannot resist it, so that the will is vitiated. This is distinguished from the vice of intimidation, because it is identified as a threat of suffering a personal harm to oneself and one’s property or to those closest to oneself, which is colloquially known as blackmail.

The provision is regulated in Article 1267 CC: “There is violence when irresistible force is used to obtain consent. There is intimidation when one of the contracting parties is inspired by a rational and well-founded fear of suffering an imminent and serious harm to his person or property, or to the person or property of his spouse, descendants or ascendants. In order to qualify intimidation, the age and condition of the person must be taken into account. Fear of displeasing the persons to whom submission and respect are owed shall not nullify the contract”.

And as expressed in Article 1268 CC, both for the case of vice by violence or as intimidation in the consent, the obligations will be annulled, even if they have been employed by a third party not intervening in the contract.

Fraudulent consent

Finally, fraud is another of the invalidating defects of a commercial contract, which requires that there be deceit in the contract in order to vitiate the will.

It is regulated in Article 1269 of the CC: “There is fraud when, with insidious words or machinations on the part of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have done”.

Moreover, in order for fraud to cause the nullity of contracts, as provided for in Article 1270 of the CC: “it must be serious and not have been used by both contracting parties”. In the event that it is incidental fraud, only the party who used it will be obliged to pay damages.

It is crucial to recognise the autonomy and voluntariness in the formation of a contract, and nullity is exceptional. Proving these defects is undoubtedly complex and requires experience, where Navarro Llima Abogados makes the difference.

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