Promise Contract: Elements & Legal Nature

• Preparatory contracts include:
  • Promise contract
  • Mandate contract
  • Option contract
  • Civil society contract

Promise Contract

• An agreement where two or more people commit to formalizing a specific contract in the future.
• It is used when they are not willing or able to do so immediately.
• One or both parties commit to enter into a determined future contract within a specific time frame.
• The validity has to be in writing, contain the elements of the definitive contract, and be limited to a specific time.
• It is the obligation to formalize a future contract, according to Article 1674 of the Civil Code.

Legal Nature of the Promise Contract

• Positive Theory: An independent figure that sparks the birth of an obligation or provision to conclude a future contract.
• Negative Theory: An uncertain figure due to lacking the object or cause to mediate.

Elements of the Promise Contract

• The parties that must ultimately participate in the contract.
  • Promisor/Promisee.
• Real elements: If the contract's object is concluding a definitive contract.
• Formal elements: If it is formalized in the same way that is required for the definitive contract.

Characteristics and Requirements of the Promise Contract

• Characteristics:
  • Bilateral
  • Consensual
  • Principal
  • Onerous
  • Commutative
  • Absolute
  • Preparatory
  • Formal
  • Typical
  • Solemn
• Requirements:
  • Contain the characteristic elements of the definitive contract
  • Limited to a certain time
  • Observed in written form
• Articles 1675-1685 of the Civil Code apply.

Mandate Contract

• A contract where one person (the mandator) entrusts the management of one or more businesses to another (the mandatary).
• The mandatatry takes charge of this at the mandator's risk.
• Mandatary agrees to provide a service, do something, and execute legal acts entrusted by the mandator.
• The mandate is a power.
• If a person assigns to another the undertaking of one or more acts or businesses.
• Article 1686 of the Civil Code applies.

Legal Nature of the Mandate Contract

• It is a management contract.
• It is managed by another legally and allows the subject to act for the one who grants the power.
• It is also principal, solemn, and revocable.

Elements of the Mandate Contract

• Personal: The mandator confers the mandate, and the mandatary exercises it.
• Real: The object are acts or bussiness that must be lawful, possible, and determined.
  • They must not be personal acts of the interested party.
• Formal: they must be stated in a public deed as an essential requirement for their existence, unless legal cases of exception apply

Characteristics and Forms of the Mandate Contract

• Characteristics:
  • Bilateral/Unilateral
  • Consensual
  • Principal
  • Onerous/Gratuitous
  • Commutative
  • Absolute
  • Formal
  • Typical
  • Solemn
  • Intuitu Personae
• Articles 43 and 38 of the LOJ apply.
• Forms in which it can be given:
  • General
  • Special
  • Judicial
• Requirements:
  • Capacity of the parties
  • Granted in a public deed as a requirement for its validity
  • Registered in the Registry of Powers (Registry of Protocols)
  • Express when the mandatary is made to appear in the same contract
  • Tacit when the mandatary does not accept it in the contract but makes use of the mandate

Mandate Contract - Parties

• The mandatary is called "apoderado"
• The mandator is called "poderante".
• Articles 1688-1704 of the Civil Code apply.

Society contract

• A private corporation with legal personality.
• It is constituted by a contract celebrated between two or more people, to achieve a common, lawful, and predominantly economic goal.
• Achieved by contributing goods or industry as long as it does not carry out commercial speculation or adopt a commercial form.
• A contract by which two or more people agree to put in common goods or services to carry out an economic activity and divide the profits.
  • Article 1728 of the Civil Code applies.

Nature and Elements of Society Contracts

• Legal Nature:
  • A powerful auxiliary of the economic enterprise of industry and commerce.
  • Satisfies collective needs through a common operation.
  • They can be private law corporations that pursue a predominantly economic purpose due to the contribution of goods.
• Elements:
  • Special: When the company forms an entity of its components, such as a common fund or patrimony, the constitution of common profit, and the division of profits.
  • Personal: The partners.
  • Real: The contributions of money that can consist of amounts, goods, or the work of a partner's industry.
  • Formal: Is formal because it is a solemn contract, and it must be formalized in a public deed and registered in the respective Registry.

Characteristics and Requirements of Society Contracts

• Characteristics:
  • Bilateral
  • Consensual
  • Principal
  • Onerous
  • Commutative
  • Absolute
  • Formal
  • Typical
  • Solemn
• Requirements:
  • Object of society
  • Corporate name
  • Domicile and duration of the society
  • Capital and share contributed by each partner
  • Capital that each partner can periodically take for personal expenses
• Articles 1729-1741 of the Civil Code apply.