Contractual Consent: Validity and Requirements

Contractual Consent

• Consent: Consistency or agreement between declarations of intentions of the parties listed in the contract. At least two statements are required:

Essential Elements of Consent

• Statement of intent to offer: A person proposes an undertaking or a contract to another.
• Statement of willingness to accept: A reply to the statement of intent, accepting the contract offer.

Contractual knowledge must be produced regarding the object and the cause of the obligation.

Fundamental Principles

• Freedom of Content: Parties can set the terms they want, provided it is not against the law, morality, or public order. (Article 1255 of the Civil Code: The contracting parties may establish the covenants, terms, and conditions as they see fit, provided they are not contrary to law, morality, or public order.)
• No Form Requirement: (Article 1278 of the Civil Code) Contracts are mandatory, irrespective of how they have been concluded, provided that they meet the essential conditions for their validity.

Validity of Contractual Consent

The validity of the contract depends on whether the contractor has the capacity to contract, i.e., they are of legal age and not disabled. If individuals other than these enter into a contract, the contract is voidable within a maximum of four years (and once a contract is annulled, it is null). (Article 1263 of the Civil Code) The following cannot give consent: (1) Unemancipated minors and (2) Disabled persons.

In addition to the above, consent to the completion of the contract should have no vices, i.e., it should not be a result of mistake, violence, duress, or fraud. (Article 1265 of the Civil Code) Consent given by mistake, violence, intimidation, or fraud is void.

Vices of Consent

• Error: A false or misleading representation of reality by one of the contractors. For this error to invalidate consent: (1) the error must affect the contract, and (2) that error must be justifiable (excusable).
• Violence: Physical force is used to compel a contract. It is irrelevant who exercises violence.
• Intimidation: Threat or coercion exerted on the contractor to consent to the contract. It is irrelevant who exercises the intimidation.
• Dolo (Fraud): Deception produced by the other contracting party, which induces the contractual agreement.