Essential Elements of a Valid Contract in Spain
Essential Elements of a Valid Contract
Article 1261 of the Spanish Civil Code (CC) states that consent, object, and cause are the essential elements of a contract. In some cases, formalization is also required, making the form an additional essential element.
A) Consent
Consent is the free agreement of the parties, declaring their intention to assume obligations. It is the core of the modern idea of a contract as an agreement.
A.2. Capacity to Give Consent
The person giving consent must be legally capable. Incapacitated persons (declared by court decision) and unemancipated minors cannot give valid consent (Art. 1263 CC).
Article 1264 CC addresses specific prohibitions, wrongly termed “special incapacities,” preventing certain individuals from contracting due to their position or concerning specific goods.
A.3. Regulation: Article 1262 CC
Consent is manifested by the agreement between the offer and acceptance regarding the object and cause of the contract.
Defects of Consent (Vicios del Consentimiento)
Circumstances impairing free and conscious consent may render a contract null and void.
Article 1265 CC provides protection when an agreement is entered into under duress, influence of threats, or by mistake. These are known as defects or vices of consent (vicios del consentimiento). If any of these vices are present, the contract may be voidable within a period of 4 years (Art. 1301 CC).
a) Mistake (Error)
Definition: Mistake is a false understanding of reality at the time of contract conclusion. It affects the formation of the will, such that the person would not have contracted had they known the truth.
Requirements: For a mistake to invalidate a contract, Article 1266 CC requires it to relate to the substance of the thing (error sobre la sustancia) and be essential (esencial), affecting conditions the parties considered crucial. The mistake must concern data valued as the principal aim of the contract, based on the agreement’s circumstances and the parties’ conduct. What was considered the base of the contract is not in accordance with the resulting reality.
Excusability: Courts also require the mistake to be excusable (excusable); that is, not due to the negligence of the party who failed to use proper diligence.
b) Violence (Violencia)
Violence occurs when irresistible force is used to obtain consent. Physical force unlawfully exercised to obtain consent is necessary. Examples include consent obtained through hypnosis or forcing someone to sign a document.
The affected party may avoid the contract.
c) Intimidation or Duress (Intimidación)
Duress exists when a threat of serious harm to a person, their relatives, or their property is used to obtain consent. The threat must be serious and imminent, creating improper pressure.
Article 1267.2 CC states: “There is intimidation when one of the contracting parties is inspired with the rational and well-founded fear of suffering an imminent and serious harm in his person or property, or in the person or property of his spouse, descendants, or ascendants.”
Article 1267.3 CC requires considering the age and condition of the person threatened. Reverential fear (temor reverencial), or fear of displeasing those to whom obedience and respect are due, is not relevant (Article 1267 CC).
B) Object
Object of contracts: Things, rights, or services that are the subject matter of the obligation arising from the contract.
Regulation:
- Art. 1271.1 CC: All things not beyond the bounds of commerce, even future things, may be the subject matter of a contract.
- Art. 1271.2 CC: No contracts may be entered into regarding future inheritance, except those for inter vivos division of an estate and other partitional dispositions (Art. 1056 CC).
- Art. 1271.3 CC: All services not contrary to law or good customs may be the subject matter of a contract.
Requisites of the Object:
- a) Lawful: Not contrary to law, morals, good customs, public policy, or public order.
- b) Possible:
- Art. 1272 CC: Impossible things or services may not be the subject matter of a contract.
- c) Determined or Determinable:
- Art. 1273 CC: The subject matter must be determined as to its species.
C) Cause
According to Article 1261 CC, the cause is the third essential element.
The legal concept of cause is not always straightforward. The Civil Code sometimes identifies the cause with the consent or the type of contract (Art. 1262 CC). However, the cause, as an essential requirement, must be understood as the justification for the obligation assumed in the contract (Art. 1274 CC).