Administrative Procedures and Contract Law
Article 43: Silence Initiated at the Request of Interested Parties
Section 1
In proceedings initiated at the request of an interested party, if the deadline expires without notification of a specific resolution, the interested party is entitled to understand the request as granted or denied by the administration, subject to the resolution that the Administration should issue as provided in Section 4 of this article.
Section 2
Interested parties may generally understand administrative silence as granting their applications, unless otherwise stipulated by law or European Community law. Exceptions include procedures for exercising the right of petition (Article 29 of the Constitution), cases where estimation would transfer powers related to public service to the applicant, and procedures involving acts and regulations taking effect against the applicant’s silence. However, if an appeal is lodged against a rejection by silence, and the administrative body doesn’t issue an express ruling during the appeal period, the initial silence is considered withdrawn.
Section 3
Administrative silence finalizes the administrative procedure. Rejection by administrative silence allows interested parties to file an administrative appeal or judicial review.
Section 4
The obligation to issue an express ruling (Article 42, Section 1) is subject to the following: If the administration grants the request through silence, a later express resolution can only confirm it. If the administration rejects the request through silence, a later express resolution can be unrelated to the meaning of the silence.
Section 5
Acts produced by administrative silence are enforceable by and against the Administration and any other person or entity. These effects begin from the deadline’s expiration, even without an express decision. The silence can be proven by any admissible evidence, including a certificate of silence from the competent court.
Applications for licenses must be issued within fifteen days.
Article 44: Lack of Express Decision Initiated Ex Officio
In proceedings initiated ex officio, if the maximum deadline expires without a specific resolution, the Administration’s obligation to resolve remains, with the following effects:
- In proceedings involving potential recognition or establishment of rights, interested parties can consider their claims rejected by administrative silence.
- In proceedings involving sanctions or exercises of power with potentially adverse effects, forfeiture will occur. The expiration of the deadline will be declared, with effects as per Article 92.
- If proceedings were halted due to the concerned person, the time for resolution restarts after the halt is resolved.
Contract Law Concepts
Inefficiency
Cases where the contract fails to produce its intended effects or ceases to produce them.
Ineffective Contracts
Contracts subject to suspensive conditions and concealment of assets.
Ineffectiveness
Certain defects extrinsic to the contract, such as mutual consent cancellation, unilateral withdrawal, revocation, termination for default, or occurrence.
Nullity
The most severe form of inefficiency. Causes include:
- Lack of an essential element of the contract
- Breach of contractual requirements
- Illegality of the cause
- Breach of mandatory rules of morality and public order
- Gratuitous acts on common goods by one spouse without the other’s consent
Characteristics:
- Imprescriptible
- Objective restitution for any interested party
Voidability
Contracts that can be voided or remain in effect if not annulled. Causes include:
- Vices of consent
- Lack of full capacity to act by any party
- Lack of spousal consent for onerous contracts made by one spouse
Four-year time limit applies.