Essential elements of complete theory

Classified in Law & Jurisprudence

Written at on English with a size of 3.48 KB.

What is a contract? The contract is an agreement of wills between two or more persons, by which one or more of them consent to be bound with another or others to give something or provide some service. The essence of the contract is the agreement of wills since without it there is neither contract nor obligations derived from it. This agreement of wills requires two key elements: offer and acceptance. Essential elements of the contract: There is no contract unless the following requirements concur:
 1.  Consent of the contracting parties; 2.  A certain object which is the subject matter of the agreement; 3.  Cause of the obligation established. (A)  CONSENT;  Consent is the meeting of offer and acceptance, and along with the rest of the essential elements, entail the birth of the contract. However, consent – despite existing – may be defective by reason of three causes: (1) error, (2) malice, and (3) intimidation. In such circumstances, consent may be regarded as annullable. (1)  Error,  Anyhow, the error must be EXCUSABLE. This means that the party could not avoid the error with standard diligence. In other words, if the error has been produced due to open negligence of the party, it will be regarded that no error exists. (2)  Malice, Malice may be carried out by action or omission. (3)  Duress or intimidation, There is duress if an irresistible force is applied to extract consent. (B) OBJECT, The object of the contract is to give something or to provide some service. This refers to the object of obligations (giving something, doing something, or refraining from doing something) since the contract is a bundle of reciprocal obligations. The object of the contract, as the object of obligations, should be possible, lawful and determined. (C) CAUSE, The “Cause” of the Contracts has been a topic traditionally very discussed in scholarship, and a lot of definitions have been given. We will consider “Cause” of the contract the true intention of the parties when entering into a contract. If this true and actual intention of the parties has not been expressed in the contract. We will simplify this, considering that: In Onerous Contracts, the Cause is the thing or service to receive by the other party. In Gratuitous Contracts, the Cause is the generosity or liberality of the other party.
 Unless proven otherwise, the Law has the presumption that the Cause (a) exists, (b) is true, (c) is lawful.  
(D)  INTERPRETATION OF CONTRACTS,  If the terms of a contract are clear and do not leave any doubt as to the intention of the contracting parties, they shall abide by the literal meaning of its clauses.
 
 
 

Entradas relacionadas: