Enormous Lesion: Requirements and Effects in Sales Contracts

Enormous Lesion (Laesio Enormis)

This legal concept has a Roman origin, which initially supposed that only the seller could suffer damage. Modernly, it is estimated that it protects against enormous lesion in the form of commutative contracts (cttos); therefore, the injury may be suffered by both the buyer and the seller.

The seller suffers enormous lesion when the price received is less than half the fair price of the thing sold. The buyer suffers enormous lesion when the fair value of the thing they buy is less than half the price they pay for it.

Legal Status of Enormous Lesion

Enormous lesion is not a vice of consent, but rather a vice of limited application targeting certain specific legal acts. It is not a general vice; it is typically a vice of the contract of sale and purchase, and certain other legal acts that the law expressly states.

Requirements for Claiming Enormous Lesion

For the action of rescission due to enormous lesion to proceed, the following requirements must be met:

1. The sale must be liable to be terminated due to enormous lesion. Enormous lesion only operates in the sale of real estate and must not have been conducted by the ministry of justice (e.g., auction).
2. The injury must have a tremendous character. Determining and proving this is a question of fact, not law.
3. The thing sold must not have perished due to unforeseeable circumstances (force majeure) while in the buyer's possession.
4. The thing must not have been alienated (transferred) by the buyer.
5. The action must be brought promptly before the expiry of the statute of limitations.

Effects of Rescission Due to Enormous Lesion

If the seller is the injured party, the buyer can allow the contract of sale (ctto) to survive by increasing the price. Conversely, if the buyer is the injured party, the seller can allow the contract to survive.

Price Adjustment and Contract Survival

The effects will differ depending on whether the defendant chooses to accept rescission or insist on the contract:

1. If the defendant chooses to insist on the contract:
   • If the buyer is sued, they can invalidate the rescission action by completing the fair price with a deduction of one-tenth.
   • If the seller is the defendant, they must refund the excess amount over the fair price, plus one-tenth part. This is established according to Article 1890 of the Civil Code (CC).
2. If the defendant accepts the rescission of the contract:

   The parties are entitled to return to the same state they were in before entering the contract.