BREACH OF CONTRACT
When a contract is breached, in relation to
the consequences, there are two possibilities
Request Performance or termination, in both cases with damages, if any (1.124 CC)
(in case of contracts that are in force. I.e., a lease agreement:if Ido not pay the rent,
the other party can either request performance or terminate the agreement,
in both cases claiming for a compensation for damages, if any)
Request Damages (1.101 CC)
(in case of contracts that are not in force because they have been already concluded. I.e., a sale. If I have paid the price
and the other party has given me the thing bought, the contract is concluded and therefore it is not possible
to terminate it, but if the performance has been defective, I can claim for a
compensation for damages (reparation or new performance).
1.303 CC
Same consequences: everything
has to go back to the situation
previous to the contract,
as such contract would
have never been executed:
the parties should return the
things exchanged
(1.301 CC, “restitution”)
If restitution is not
possible, the obligation to
return the goods is turned into
a monetary obligation 1.307 CC).
Both are categories
of ineffectiveness of
Contracts (jointly with rescission,
which is more exceptional)
NULLITY: Lack of consent, lack of object, lack of cause, lack of form.
The contract is born “dead” -we say the contract is declared null and void.
E.g., Persons incapacitated by a judge and minors who are not emancipated, cannot give valid consent.
E.g., when the thing has been lost or has perished before the sale (1460 CC), or when the object is
illegal (drugs).The contract is not even born.
E.g., a “simulated” sale that is actually a donation (buy a diamond ring for 100 € or for no price).
E.g., if a donation of an immovable property is not performed in public deed (633 CC),
or if a mortgage is not constituted in a public deed (1280.1º CC)
VOIDABILITY: Vices of consent (mistake, dolus or deceit, intimidation, violence)
Lack of capacity (i.e., when a person incapacitated*, but not yet by a judge, enters into a contract)
Lack of marital consent
The contract is born valid but with defects, therefore, it is afterwards “annulled” –we say the contract is declared void.
No term to allege it
4 years from the cause
of voidability is noticed
*A person is incapable/incapacitated whe n he has no ability to govern himself.W ithout ajudicial decision declaring the i ncapacity,anybody can conclude valid cont racts.To declare void
such contracts,it is necessary to prove that such incapabili ty existed when the act was performed.
Nullity –null and void contracts
Voidability –voidable or annullable contracts