Contract Law: Essential Elements, Types, and Formation
The Contract in General
It is the expression of intent and also is a concurrence of two or more persons to form in them a commitment to resolve or edit an existing one.
The contract is an agreement whereby both parties mutually, or just one of the two, promises and obligations to the other to give or not to do something a certain situation. It is noteworthy that the contract is a legal agreement. It is also the largest source of obligations, and we find it daily. It manifests itself as a great tool for the movement of goods and services.
Freedom to contract indicates that the parties are free to celebrate or not contracts, and to celebrate the act on equal terms. There is a concurrence of wills between the contractors and set contract terms, determine its purpose well without further limitation than the public.
As regards Article 1272 of the Civil Code of the State of Tlaxcala, it relates that the agreement creating or transferring rights and obligations are named after contracts. Personal rights are not transferable either by contract or by inheritance.
Capacity to Enjoy
It can be the subject of rights and obligations. Exercise capacity addition: The ability to exercise those rights and meet those obligations.
Regarding the ability of people to hire: Have use of reason to be able to hire, also can not hire minors as suffering from a mental disability as fools, or the duration of this madness and if he does so is by through its representative, plus the largest handicapped who are deprived of intelligence, may not be able to recruit.
As regards the inability of foreigners, according to Article 27 of the Constitution of the United Mexican States, it prohibits the acquisition of land and waters along a stretch of 100 kilometers along the borders and 50 kilometers on the beaches. Article 27 Const., in fraction II, corresponds to religious associations and the fraction III public charities and private, said that may not acquire more goods than are necessary for its purpose.
Elements of the Contract
What are the consent order, it is accordingly not have to have, where the elements of validity, which refers to the absence of vices such as the error will, bad faith, violence, injury, must also ability of the parties exist and form a formality with the provisions of law and legality in the purpose or object on or condition.
For its part the injury: It is the realization of profit disproportionate abuse, motive or purpose or condition, is the spirit that should have our contract, in addition to having the right condition, for its part the agreement, is the will of debtor to be bound, moreover, that such consent shall be by mutual agreement. This implies that there is a legal interest that will have to be serious and precise externalized tacit or explicit in having a certain content.
Expression of Consent
It is tacit and explicit, so it corresponds to the first event is unlike tacit obligation will not say anything, and as regards the form is expressed in written form that will give such consent.
Consent Between the Formation of These
Allows supply undergoes changes so that even if the offeror is not required to hold it in their interest to accept these changes and get to that consent, and then derives an offer without fixing a deadline by which the offeror which must, if its bid is received immediately unless otherwise agreed.
Bid with time. In this issue the offeror is bound to the deadline.
Bid by phone. This is considered that the contractors are face to face.
The Formation of Consent Between These No
We have the system of declaration of will, which is in agreement that the will is manifested, or concrete as soon as the recipient receives the offer and adheres to it.
Dispatch System. Refers to know the recipient in compliance of the bid by some media.
Reception System. It is not sufficient for the purpose of the message or mail, must arrive at its destination, the contract is formed at the time that the bidder with the acceptance, under Article 1298 of Civil Code for the State of Tlaxcala.
The information system. In this issue the consent forms at the time the bidder learns the contents of the acceptance.
Another element of the contract. It is the purpose of giving or the fact that the obligation to do or stop doing certain behavior, and find the direct object is the creation or transformation of rights and obligations they may be real or personal, and indirect object is represented by this thing, the act or abstention.
Requirements of Dar Object Obligations
They must be in the physical possibility, legal and should be determinate and indeterminate.
The vices of consent or lack of will. Error, which is a false concept of reality, such knowledge is one thing wrong, besides being a mismatch of something or someone in reality, the error occurs the absence of contract worth mentioning that the error is divided into legal error, factual error and the error of the individual.
For example, the error of law, when a person contracts with a child thinking it was higher.
Dolo. Fraud means any suggestion or contrivance that is used to mislead or maintain in any of the contractors, said fraud can come from any party or any third party to produce relative invalidity of the act, may the petition for annulment to be affected by this defect.
Purpose of Contract
- Legal conditions arising from this.
- The obligation of the contract.
- The intangibility, which can not address one of the parties to the contract.
- Relativity, the contract may never fail to have binding effects, except the mortgage.
- The effects, two types of direct and reflex effects, the former are those which made reference when you do, the latter arising from contracts real effects.
Interpreting the Contract
Consent is interpreted through rules, which will be subjective and objective is the first internally the intention of the contracting and interpret the context of words and the second will take the name of the contract and will be in written form.
It is noteworthy that the interpretation of the contract is divided into the following:
- Meanwhile systematic interpretation, refers to the clauses in general, for its part the inclusive interpretation, will see the scope of all others will be discussed which are the essential clauses, those contractors that they will say, natural clauses, arise in the ordinary way according to the accidental clauses also arise if the parties agree.
- To point out an example of incidental clauses is the clause is deemed to be criminal and established according to law.
- Interpretation inclusive, will see the scope of all others, and discuss which are the clauses which are divided into essential, accidental, and natural, for its part .- of the essential terms are those derived from the same contracting the same conclusion the contract, and natural .- clauses are those arising in the ordinary way in accordance with clauses accidental and arise if the parties so wish.
Classification of Contracts
- Unilateral contract is one in which only one party undertakes, eg to sell.
- Bilateral contracts. It is one in which each of the parties also agree that there are two wills.
- Onerous contract. The tax falls on producing money for the parties.
- Free Contract. Produces no charge to the parties.
- Commutative contract. The profits and taxes are known and some from its conclusion.
- Contracts random. Establish profits and taxes depending on a condition or term not mentioned at the time of conclusion of the contract.
- Contracts consensual. They are those where there is a concurrence of wills, that is by mere consent.
- Contracts are written formal. What is essential to its validity.
- Contracts real. Are those where the parties give each other a legal situation or agree on the delivery of a thing.
- Instant Contracts. Are those that are true to the time of conclusion of an act in a moment.
- Contract successive chain. Are those for fulfillment of obligations takes place in a given period eg buying a car.
- Contract solemn. Are those perfected by mere consent, except that they are solemn special form.
- Contracts history. Such contracts have the promise of contract for which there is a unilateral desire for example the sale, or contract as background preparation of any contract
- Transfers of ownership contracts. Are those in which it is transmitted to another person, an example of this is the sale, the exchange or donation.
- Contract services. An example of this is the contract of mandate, transport and so on.
- Contract realization of a common purpose. An example of this type of contract to the association found civil society and agricultural and livestock.
- Warranty Agreement. An example of this agreement is the guarantee, pledge and mortgage.
Pledge of Contract
It is the pact to enter into a legal act or futures contract known as to which is intended to contract, having as main characteristic that should be in writing, it is noteworthy that the elements of this contract are the will of the parties this may be, unilateral or bilateral and should set a deadline that must exist in addition to the formality under the law.
As regards the elements of validity of the way that we necessarily must be in writing and the ability of the contractors so they can conclude the act.
It is noteworthy that the essential elements are the consent of the contracting parties and the subject of that contract that should not be illegal, as well as personal items exist where these contractors are obliged to hold a futures contract is worth mentioning that another party is a beneficiary and bilateral promisor and if both are promisor and beneficiaries
Termination of the Promise of Contract
That promise ended contract for the realization of a future contract, or expiration deadline, or by mutual consent of the parties or the death of one of the contractors or that the contract is illegal.
The Promise of Sale
For the author Marcel Planiol is a contract whereby a person agrees to sell to another one without this consent immediately buy it.
Under Mexican law is a futures contract or is it a separate crime, it is noteworthy that an agreement of wills by exchanging reciprocal declarations whereby giving the promise assume the obligation to conclude a future contract.
The promise of contract is a useful tool for those who care about the certainty of a conclusion in a final and only the obligation to beget and is issued in final contract, as regards the elements of validity is the way it stipulating that should be in written form and the object of that conclusion must be lawful.
The promise of sale has different effects on the sale and needs to be appointed but the thing sold and sales are carried out, and have participated more than one buyer that has been lost, not their fault if the sale is made, or fault of the seller, will return to the other as much.
Essential Requirements of the Contract
- The ability of the parties.
- Object. The certain thing that is tender, well that is determined and has a certain price and determined and payable in cash and the thing is real, not simulated.
- Is written formality.
- That there is consent of the parties.
Sales Contract
Is this legal act by which the parties undertake to deliver a good or a thing worth mentioning is that the contract whereby one party agrees to transfer a right or to deliver one thing and the other to pay a price true and certain in money and is one of the most important legal figures, besides being a primary means to acquire the property.
Effects of the Sale
a) Delivery of the thing.
b) Pay the price.
c) You can sell some things
Revocation of the Sale
Such invalidity silk things that do not exist or things that the seller has no liability where the damage and pay damages to the buyer, or when dealing with sales persons, ie it is a void there is also fraud in the legacy of a living person is a right as uncertain and even if there is no consent, or there is also void the sale when we speak of food due to family law, we talk about alimony, and is designed to meet needs pressing.
Classification of Sales
v pre is a consensual contract exists an agreement of wills by mere consent.
v principal that is not dependent on another contract
v is bilateral there is an obligation for both parties.
v .- It is expensive because there are useful to both parties.
v commutative .- Why is there some profits and taxes from its conclusion.
v is executed immediately.
v is transfer of ownership and transferring ownership of property.
Form of Contract of Sale
There are three types of form:
1) The legal or ordinary solemnity. That is by public deed on property and its omission is the absolute invalidity.
2) legal and special solemnity. This type of ceremony is found in a forced sale by the minister of law and public auction.
3) conventional Solemnity. Is the possibility of agreeing while writing is not given in public.
Delivery of the Thing Sold
I. The seller must deliver the thing sold in the state it was at perfect the contract.
II. With fruit and yields.
III. In the place agreed upon unless otherwise agreed.
Seller’s Obligations
- Keep the thing to delivery under penalty of paying damages to the buyer.
- Deliver the goods sold and legal material.
- And sanitation, such as surrender possession and quiet and peaceful as the sanitation of a third party the right talk about the sanitation of the eviction and not spoil anything but the buyer gets the good faith or threat dispossession of the subject matter of the sale, the deprivation experienced by the purchaser of all or part of the thing can be purchased for an act prior to sale or a judicial decision, and the supplier here will come to the defense of the buyer and appropriate reparation for the damage and injury or loss of the trial.
- Latent defects of the thing existing at the time of sale, which makes the thing purchased, not used to serve its purpose or only imperfectly, and these defects can be pre-sale and are of the vices called rescission, in this case we speak of vices returnable or refundable.
- Y are latent defects that are ignored by the buyer.
Obligations of the Buyer
- Pay the principal price of the obligation at the time agreed, and may be at the time of delivery of the thing.
Buyer’s Rights
- Receive the thing in the place and time agreed.
- And if he receives at the place and time agreed arrears reception occurs and there must be a payment for maintenance costs, and the buyer has to pay the expenses of the sale in its share
Rights of Seller
- Thing in relation to restitution from the buyer.
- They have a right in relation to tree
- As also with regard to the pledge.
- Enforce contract compliance.
- If the purchaser returns the deterioration of the thing.
Conditions for the Sale
a) The outright purchase, the obligations are fulfilled and consumed at the same time of hire.
b) Covenants accessories (clauses) determine the meaning of the contract.
c) Invalidity of the sale to any person, the parties can not cause an inalienable asset is only likely to be caused in this regard by law.
d) Covenant of redemption, to recover the thing if the buyer determines to sell it.
e) preferential rights, the rule or law that grants the wishes of the parties in similar circumstances to acquire an asset against a third party.
f) Right of .- which is both the owner or the owner, heir, the tenant, or tenant of the thing.
The sale of something future
Belongs to the genre of aleatory contracts, which should stipulate a term or condition and should be mentioned that, if the thing does not come into being no effect and therefore there is no obligation.
The sale on credit
It is worth mentioning that the price will be covered by items or time periods when property is not identifiable, the parties may agree on the rescinding by default and this situation will not become effective against third
The retention of title sale
The property of the still thing the seller to pay the full price and the seller reserves ownership of the object until the buyer pays the total price, the reservation of title or the total surrender is given to compliance with the obligation.
Lease
It is noteworthy that the author’s purpose indicates that the lease is one legal act in which one party undertakes to transfer the pleasure and enjoyment of property temporarily and the other party has the obligation to pay for that use and enjoyment of the property, in which both parties agree mutually exist of reciprocal charges, this legal concept is one of the commonalities that exist in the legal context, particularly in local call it real estate or departments etc.
As concerns the very broad parameters of that lease is the legal act to convey the pleasure and enjoyment of property in which property will be bilateral is where both parties agree that is will have rights and obligations so it may be expensive, consensual, which agree on the duration of the contract and obligations as well as being given in writing with the legal formalities
Also worth mentioning that there lease when one of the two contracting parties mutually undertake to grant the temporary enjoyment of a property will receive a remuneration in cash, further, that such lease will involve parties that are named, one of landlord called them, that silk and the good tenant who will use and enjoyment of the good reason of the lease.
As regards the development of the topic in the “Lease”
The Promise of Contract
It is noteworthy that the author’s purpose shows that the promise of a contract is considered a preparatory contract in which two parties agree to hold a forward contract is the purchase of a rental car or a local, there as the main element the consent of the parties resulting in the will, the promise of something for the future contract which should translate in writing and the formalities of law.
As concerns the very broad parameters of the promise of a contract is worth mentioning that the Spanish doctrine, states that the promise of contract is an accessory contract, given its nature as it requires a futures contract and a warranty, so compel the parties to commit to future conclusion of a contract and not only verbally but in writing, setting out the benefits and obligations thereafter to hold the parties involved in the contract.
Also worth mentioning that the promise of contract as to its nature is considered the contract to be based on existing features that promise to be established in the futures contract, also that there will be parties to intervene in the contract that promisor and are named beneficiary and the other party if both parties agree will be referred promisor.
Author’s conclusions
As regards the author indicates that leasing is a contract whereby one party lessor agrees to temporarily transfer the use or enjoyment of a thing to another party lessee who agrees to pay the enjoyment of good money , this being a contract of transfer of use, expensive and bilateral in which both parties agree mutually.
Staff Conclusion
It is noteworthy that there lease when the two Contracting Parties undertake to grant each other a temporary enjoyment and use of property and the other to pay for the use and enjoyment of the good money, why the lease should be mentioned that the lease room for farms can not be more than ten years and fifteen years to farms for trading, I consider it one of the biggest contracts used by the community to lease an asset.
Author’s conclusions
The author tells us that the promise of recruiting is the preparatory contract in which the parties commit to holding a futures contract within a certain specified period and must meet the elements of validity, the consent order may free of defects, besides the parties should be able to recruit is to meet the elements of validity, and above all that is in written form.
Staff Conclusion
The promise of contract, means by which the parties agree mutually to the conclusion of a futures contract which shall be in writing and with the formalities required by law for its conclusion and implementation, as well as a possible penalty if not were to take place unless otherwise agreed. I think the promise of a pre-contract agreement for the transfer of any right to future in which the parties agree and think it is something that should be more in practice to avoid many endless conflict.