Interest

Juan Carlos Corina Orué *.

 

jcorina@legales.com.py

 

 

 

TESTING AND CONTRACTS.

 

 

 

... CARNELUTTI: "The judge is among a tiny circle of light, beyond which all is darkness. Behind him, the enigma of the past, and before, the enigma of the future that tiny fence is the test [1]. "

 

 

 

Summary:

 

This work is in its first part about the importance of testing in general and about the need to have it as an ally if the placement of our arguments is intended, in any field where they are developed. In the second part is already the subject of demonstration contracts properly, and certain issues in this matter acquire greater importance, such as exposed v.gr: when there must be a certain way? and if there is not the same, what has outputs that are ?; all while maintaining a close look at the prevailing doctrine and usus fori in this area.

 

Introduction

 

The law as a social rule imposing conditions of life of society acts on the truth. Indeed, otherwise, before obtaining a social order would be given a tremendous mess, because the human being is able both to tell the truth to lie, that is, has the power to express or not your thoughts According to reality.

 

The tremendous disorder to which I refer, would be if only the right to demand such parties argue what has happened, and therefore their claims without further request. In such a case the administration of justice would be impossible, because the judges would not know who to believe and based on that decide; so that "there would be no legal order [2]".

 

It is obviously, if the only blow air through the lungs causing the vocal cords vibrate, leave voice and express our ideas, it will be the parameter to determine whether something is true or not, all would be right and all turn , we could claim anything. It is why the law through the law requires individuals to show that what they are saying has been in accordance with reality [3], and in case of false their claims will have little effect [4].

 

However, the issue of proof beyond the horizon of what is legal, going to the core of life itself, settling in family, professional and social life; v.gr: Suppose a student wants to register to attend college, in this case must inevitably submit evidence or proof of high school, not proving it, will not be allowed admission and completed. In this vein, although the tests are within the law, this is only one of many areas where it operates, as reality and necessity demonstration is given in all fields of life [5].

 

 Bunge [6] stands out as an essential character of science verifiability, and expresses that implies the possibility to check if this is according to experience, since only the verifiable knowledge through demonstration and experiment scientific. So also in the field of pragmatic philosophy William James he has said: "It is wrong always, everywhere, and for everyone, to believe something based on inadequate evidence [7]."

 

 Encompassing the subject, Carnelutti stated that "" The proof is the heart of the problem of judgment, [8] Just as this is the heart of the problem of thought "

 

 Returning to the field of law, all rules as a condition of operation requires first the existence of the fact, then just attribute legal consequences provided by it.

 

So, anyone who says that the issue of testing both contracts and the law in general is important, perhaps reckless sin as proof of contracts is not important, it is simply vital.

 

Regarding this Alterini states: "Since student days I remember a classic phrase of Professor HILL, repeated in the books that were then usual: try is to overcome ... [9]," said author also relates that " Once the matter is taken to litigation, the alternative is "try or perish" [10] "

 

No doubt the gentle reader, although you can estimate how important these issues, you can also estimate them as old, but there is something that has generally been overlooked when discussing the evidence, the psychological element termed "suggestion". Indeed, according conducted psychological studies, man accepts as true all that they tell you not find an opposition in his head, that is, if today tell us that Saturn has 4 rings of water surrounding it, as suggested by the other party is taken as true, except that we know that this is not so.

 

This psychological discovery allows us to see how dangerous it can be to have no awareness of the importance finished of the match through the test. Suppose a lawyer to his client received his law firm, the client will surely tell the story of your case, and most likely the lawyer convinced the reason for his client; Now if the attorney gets only the client's history, writes demand and idle without more, lose the lawsuit. So that lawyers should be aware that the claims must be accompanied by demonstrations, and how dramatic can be the end if you have not done so. The same would apply to the case of the judge ready to deliver judgment is carried away by natural suggestion and considering only solves the alleged, without looking at what actually shown. In both hypothetical assumptions, following the suggestion of the importance of the test was sidestepped, with consequent tragic effects.

 

Now, What is testing?

 

The test consists of the demonstration [11] regarding the existence of certain facts is done, this show is performed by means of various evidence, consisting of the latter in the tools to be used by the parties for the purposes of demonstrating their claims, and the judge to consider as proven or not, fact.

 

As well explained quoting Mosset Iturraspe Dellepiane, the mission of the judge, is analogous to that of the historian, as both tend to figure out how things happened in the past, using Scars let the facts [12].

 

So, the judge at the time of sentencing, having before it the record, conduct a full "investigation" for the purpose of determining how the events occurred in the past. Just note that the research comes from the Latin word in-vestigia (looking for the remains or traces); is why we say that the judge will seek the remains or traces, that pun, will allow the reconstruction [13] what has happened in order to judge properly.

 

The lawyer's work on your part will be to provide the judge that set Scars necessary to determine the existence of certain facts, so far emerged as very successful regarding Carnelutti he says that "the judge must make him see [14] "that is what happened.

 

The demonstration of contracts.

 

Understood the contract as the voluntary agreement intended to regulate the property rights [15], the demonstration of it will depend largely on its nature.

 

In this vein it should express that contracts can be, prays formal, non-formal prays, as required by law or that they are covered with some solemnity or formality.

 

In the case of non-formal contracts, they may be proved by all the evidence authorized by the procedural law (Art. 703 [16]), and as we said, on them there will be no need for formality or some solemnity. In contrast to formal contracts, their existence and will test only if fully with the requirements provided by law have been met, so that the required solemnity is called in doctrine as "unwilling or assessed [17]."

 

The contract is definitely not the document that supports it.

 

One issue that generates many problems for legal operators, and society in general, has to do with the automatic identification, which is usually done, the contract with the document that implements and collects; that is, people often believe that the contract can only be signed a piece of paper, and if there is no sheet, no contract. Such automatic identification has been my concern since I exercise the work of teaching, because I observe daily as to the question of who is a contract, students generally say "a document signed." [18].

 

Distinguish the contract is not the document that contains or supports, it is vital for anyone involved or have an interest in a contract, as the right vision, we will establish from when the contract is concluded, and acquires its enforceable character. Ricci with respect thereto states that "care should be taken not to confuse convention with the test [19]." Similarly Alterini clarifying the concept of instrument states that it "... has worked as" a representative thing done "(Carnelutti)". Classical regulated private instrument codes with three requirements: A paper support, a handwriting and signature. The current base paper was given its practicality over other alternative, such as stone, or the back of a donkey, like the one in which they say once a bill of exchange was fought in Britain. "

 

Thus we have through the instrument which is achieved is precisely document or implement the contract, but the latter does not necessarily identify with the instrument that supports and documents, since it can have life even if that has not been poured or It implemented at all, without prejudice to cases of solemn formal contracts, on which we will refer later.

 

In this vein Diez Picazo documentation explains that a contract is "... the operation or set of documentary evidence necessary to capture and collect the declarations of intent to form the essence of the contract operations. The document (of docere, ie teach) ... [20] ". Similarly Candian defines the document saying "it is a simple or compound body and ideal thing to receive, preserve and transmit the descriptive representation, or phonetic emblematic of a certain legally relevant entity [21]".

 

That is why the "instrument" consisting of a sheet of paper, is aimed, as its name implies, "implement" the voluntary agreement, but in no way is the same, and so agree with that Mosset Iturraspe "The instrument is an act other than the documented statement [22]". In this vein the author even states that "the vices of the document are autonomous from the vices of the contract; where an improved contract can be issued in a defective instrument and the invalidity of the document does not reach the same content business [23]. "

 

Methodology Civil Code

 

Our Civil Code regulates the French model in certain articles regarding proof of contracts without prejudice in this vein by the Civil Procedure Code. So, there is a binary forecast on the issue, existing standards in law background, and in shape.

 

Formal contracts.

 

As noted above, non-formal contracts can be awarded without a need for any formality or solemnity, and can be shown by any available evidence, but the situation changes when we talk about formal contracts. In this vein Diez Picazo says that in formal contracts "or by operation of law or by agreement of the parties, the contract does not reach full validity and legal effect only when the contractual intent was expressed or manifested through a Special solemn, modern especially through the signing of a document. [24] "

 

Like we said, the availability and feasibility of testing them, depend on how willing or assessed specifically by law, and according to it are divided into solemnitatem ad and ad probationem.

 

Formal contracts solemnitatem ad will be those in which the shape or ready solemnity by law is demanded as a condition for the constitution of the act itself, which if not met, will not be taken by the existing act. In this species it governs the aphorism "form dat that rei" (form gives being to the thing), namely that it did not satisfy with the form or solemnity, no being (in this case the contract) [25].

 

Turning on the point of contract with identification document, note that this will only identify correctly here, because this species only, the instrument or the contract is. Borrowing the words of Diez Picazo we can say that in this case, yes, "... the document fulfills the role of the budget of the very existence of the contract and therefore its validity," because "only when the paper was given, written and signed the contract can be said to have been born to the legal life and perfected. Prior to issuance of the document is a pure pre-contractual phase -tratos preliminary iter, conversations, etc., but still no agreement in the legal sense. In these cases an agreement of wills that has not become documented legal transaction is void as [26] ".

 

Professor Naomi Nicolau exemplified in their classes, the case of Mr. higher than willing to shew certain lady expressed her that gives her department has in the city of Punta del Este; in that case, even though Mr. cited have made year after year, many private contracts confirming its will and showing so their gratitude to the lady, the contract will be void and of no value, otherwise it shall have been made by deed , since the form was required ad solemnitatem, being a donation of property [27]. That is despite the existence of innumerable written documents and other evidence, if not met the required form, the act does not exist, since the way here "is a constitutive element of the contract [28]."

 

Following this line, the Court has stated that "a contract is ad solemnitatem when externalization is required under penalty of nullity. Missed the form of the transaction is deprived of its own effects ... The shape is then required actus ad substantiam, ie have constitutive value [29]. "

 

The above has to do with the ad solemnitatem absolute, but also the code provides for the existence of contracts relating solemnitatem ad; in the latter, the absence of form or formality does not render effects to act, but engenders an obligation to comply with a legal requirement, and in exchange for a right arises partly to the effects of requiring that formality (V.gr . those contracts having been made privately, should be in a public deed, such as the transfer of a vehicle).

 

In formal contracts probationem ad instead formalities required to mere demonstration effect of such agreements. Diez Picazo on the point referred to in the ad probationem "the document is merely a means of proof of the existence and content of the contract."

 

 In this vein the art. 704 CC states that contracts which the law requires a certain way, be considered only if they meet the same proven [30]. On the required form, art. D.C. 706 It states that contracts of more than ten wages (around 540,000. Gs to date) must be made in written and can not be proved by witnesses [31].

 

Exceptions to the Principle.

 

As noted above, only in the case of absolute solemnitatem ad contracts, required as a sine qua non, the existence of the document to invoke the contract; since in the other, but will eventually be required, the requirement is only given to show the effects of the agreement.

 

It is precisely because of this requirement of written contract, where usually arise most problems, since many times mistakenly think that the requirement of writing has not been fulfilled on the occasion of the agreement, no contract, not taking into account that requirement, as we said, is the sole purpose of the test, and contains a number of exceptions. These exceptions, redundant, do virtually almost all contracts to be finally tested, as the written instrument is required except that, now would inability to obtain such evidence, now there is a written test first, sometimes when a party and receiving a benefit and yet it refuses to fulfill the contract [32]. So who, being the subject to any of those exceptions case, the contract may be furnished by any available evidence (Art. 704 in fine).

 

Notably, the number of cases in which agreements are verbal and non-instrumented writing is truly remarkable, and mainly give because there is still a lot of confidence of people in their partners, despite the countless examples showing that " the words are gone with the wind. " So in the words of Mosset Iturraspe "The legislator is placed in the usual situation in life of the contracts: are made to be fulfilled and the vast majority of them are exhausted such implementation in good faith and without raising differences or disputes. But few -for fortune "institutionalized justice", otherwise "," explode. "- Differences arise that lead to litigation in such cases, freedom of celebration is put aside and a form is required for show at trial. Such a requirement can be a surprise and even a trap for the contracting confident that conforms to recruit verbally. Validity of verbal celebration, but the writing requirement for the demonstration [33]. "

 

It is precisely quoted considering what our law provides exceptions to the requirement of writing. So, it will be vital that the legal operator knowingly handle these emergency situations, to invoke the effects of power and reinsert the contract so as enforceable agreement within the legal system, getting rid of the "trap and surprise" that possibly in store will, in the words of Mosset Iturraspe, purely verbal contracts.

 

1. Inability to get the written test.

 

This is the first situation of emergency, and is expected since there are certain contracts in which it is impossible instrumentation writing, due to the occurrence of unforeseen situations; for such cases our rules provide for the possibility that agreements are demonstrated by any available evidence [34].

 

The classic case [35] used by the doctrine to illustrate the physical impossibility that could give when implementing the agreement is the deposit required; v.gr: college is on fire and students deposit their books from the library in the adjoining field. In such a case obviously it could not require the written form of the contract, since by extreme circumstances around which the agreement occurs, it has been impossible to obtain evidence designated by law. To hold otherwise would be an obvious absurdity and would go contramano justice, since evil could ask that in these urgent and unforeseen circumstances, the parties have the serenity, the time and the opportunity to draw up the agreement in writing.

 

Now, what the doctrine is considered more likely that cases of moral failure occur, this was configured when certain circumstances of time and place, the wording is not possible in writing [36]. Significantly, it is not necessary that there is a real force majeure, but only the impossibility must be reasonably justified [37].

 

Have been accepted as moral impossibility those cases family, social or work situations in which it is estimated that there are emotional ties. So generally it has been exposed to integrate the diversity of situations of moral impossibility those "so narrowly confidence or important economic dependency (such as when it comes to spouses or concubines or parents and children, or employers and employees) because respect and mutual trust or existing between the parties hierarchy, the writing requirement could mean a dangerous or abnormal situation to their relations; and also cases where the urgency of the service (as happens to doctors, dentists, lawyers, etc.) or the speed and multiplicity of operations or social custom (such as during fairs v markets, deposits in hotels and similar places), could be a serious drawback for holding business or a notorious impertinence require prior or contemporaneous written as contract measure. [38] "

 

 In this vein have been admitted specifically as cases of moral failure "business between relatives or between people living in the same family, as parents and children, masters and servants, husbands and wives, doctors' bills ...; sales of cattle fairs and cattle markets, given their multiplicity and speed ... dealings between employers and workers, given their economic dependence which implies a social impossibility ... ... promised business between business among people living the religious life. [ 39] "it also has admitted the impossibility uxorie more cases, that is derived from the common-law relationship, and professional relationships as those relating to lawyers, doctors, teachers, etc. [40]

 

It has been rejected there said impossibility if there is only one simple friendship, if the debtor merely has refused to formalize the agreement, if there relationship a relationship of enmity or distrust is also finds, even if this decision found that one of less intellectually parties [41].

 

2. Principle of written evidence.

 

As another exceptional case is expected at the beginning of written evidence, which consists of any public or private document emanating from the other party, its representative or any interested party to the dispute, and accordingly make credible the disputed fact . (Art. 705, in fine.) [42]. Under what was said supra, such requirements:

 

 A) must come from the adversary, its cause or interested in the controversy so things would not be admissible in the case that the author of the document is the same party filing the trial or if it comes from a third party, but if it would be admissible whether emanating from a "representative, agent or legal representative (father while he had custody, for example) or contract (as the manager of a company in litigation with this) of the party to whom the letter is opposed, or cause in proceedings against the Crown ". Although the above must be taken into account with respect to "the procedural action of the legal representative can only have value of confession and, therefore, the beginning of written test, as he was entitled to confess. She told by the agent without authority to confess lack of probative value against its principal and can not be accepted as a principle of written test. They expressed the Colombian Court on the case of questions for positions (CC of April 16, 1959, GJ t. XC, no. 2210, p. 322) [43] ".

 

It should be noted that while it is necessary that the same people come from above, need not be signed. In this vein the Court has stated that "An instrument sent by fax can not be judged as a private document under the terms of art. 1012 of the Code. Civil, but nonetheless possesses sufficient probative value as prima facie evidence in writing pursuant to the provisions of art. 1190, inc. 2 of the Code. Civil and in this sense, there is a private document broadly [44] ".

 

In the same vein was said to be a principle of written evidence, if the document comes from the hand of the enemy, however not be signed. [45]

 

Note that today more than ever that exception becomes relevant, given the massive growth and accelerated consumer relations, relationships in which people are acting as the weaker party and where in the majority of cases the only evidence of recruitment constitute the tickets, passwords, etc. [46].

 

B) You must make credible the disputed fact: namely that the document must be related to what is being discussed by a method analogous to that used for testing assumptions, which through a known fact (in this case the principle of written evidence) is passed to meet another unknown. But the hue of that relationship or causation is what has been widely debated in doctrine, because they are those who state that only certain causality need and can add to turn other evidence (Devis Echandía, Pothier, Claro Solar, Ghersi ) against those who argue that there must be a direct relationship necessarily (Pangrazio, Alterini) between the document and the contract.

 

In this vein Pangrazio states that should "have a direct and necessary link with the contract to be test; for missing this connection has been refused the status of prima facie evidence of a written loan agreement to checks drawn by one of the parties and deposited in the bank account of another, then answer multiple causes "[47].

 

I sitting position on the matter, I think the criteria should be loose, since very few cases where you will be able to see the direct and necessary relationship as part of the doctrine requires. In this vein the Colombian Supreme Court has referred to "anyone can be a written test first, no matter how, the occasion and the purpose to extend letters, telegrams, domestic records and papers, notes in the margin of a document, copies of correspondence, legal proceedings, etc. The first test may consist of one written, or at the meeting of several different writings when one of them is not sufficient by itself. "All this, especially considering that" it is not to prove the truth of the fact controversial in judgment, but simply the likelihood of it [48]. "

 

Enlightening are the words of Devis Echandía who explains that "can not be required that the letter containing the contract or to convince itself, because then it would be his documentary evidence and not a single principle or beginning of written test. Suffice it to refer to the contract or mention (but this is not necessary) or is a consequence of this or an antecedent or otherwise logically assume you do because there is a causal link between them; ie indicating something that leads to it [49] "

 

Mosset Iturraspe doing racconto of existing case law on the matter noted failures in this trend, stating that "It basically points out that these instruments have a legal plausibility, although they did not emerge the full proof of the contract, because if so it would not be a prima facie case, but a complete test. (C1a CC de La Plata, Room I, 01.12.98, BALF 1999-1338) [50] ".

 

3. Contract performance Home

 

The third exception is in the case that the contract is in full andamiento, having a party received and any resulting benefit, and refusing to enforce the agreement. (Art. 704). The exception responds to an obvious principle of justice, since not only the defendant work with open bad faith, but also in the case of not protect the affected, would be giving a transfer of assets of an estate to another, just cause. So it has been said that "It would be immoral that the party has" received any benefit "could usefully argue that the contract lacks the shape to be separated from it, and vice versa (Salvat) [51]".

 

The course will give a lease in which has already been given possession of the tenant thing, so opening the possibility to test the contract by any means. In this vein the Court has stated that "If the landlord proves that provided the service, if test execution (and the test can make it by all means, including witnesses and assumptions, as it is" made "), the rule of art. 1193 of the Code. Civil is moved by art. 1191, whereby if a contract is a form determined by the law and it is not has observed, are admissible all means when one party refuses to perform the contract and would have received a benefit [52] "It has also been It said that "Mediating contract performance principle, demonstration limitation does not apply art. 1193 of the Code. Civil (CNCiv, room D, 18/02/85, ED, 114-190). "

 

Exceptions generic test.

 

Provided that the party wants to rely on those exceptions obviously the need to prove or test. Argentina and the case law referred to "When an actor petitions under a verbal contract, he bears the evidence of its existence and the extent and scope of the respective considerations [53]."