Art 1258 commercial code
The governing principle in matters of contractual perfection is the agreement of wills, which admits exceptions and in full in real contracts, which are perfected after the agreement of wills with the delivery of the thing object of the contract.
Since the consensual principle prevails over the real principle, if the contract does not require, due to its special nature, any formality such as a deed, it matters little when the agreement is formalized, because in such a case the document will have no other legal purpose than to prove the agreement. In this sense, it is normal that the definitive agreement of wills and the signature of the document that will serve as proof take place in the same act.
Good faith is the soul and life of every contract. For many it generates “fear” because of the powers it implicitly confers to judges and for others it is the “panacea” to adjust the contract to what responds to their interests. This work provides the keys and instruments to find the balance between the two.
The author of the study, Doctor Gustavo Ordoqui Castilla, author of numerous other legal publications, is Director of the Civil Law Department of the Law School of the Catholic University of Montevideo (URUGUAY), Professor of Civil Law (G5) of the Catholic University of Montevideo (URUGUAY), Corresponding Member of the Academy of Social Sciences of Córdoba (Argentina), Member of the Civil and Commercial Law Research Group of the Faculty of Legal Sciences of the Pontificia Universidad Javeriana (Bogotá, Colombia), Corresponding Member of the Academy of Iusprivatists of Pavia (Italy), Academic Secretary of the Ibero-American Association of Private Law (Argentina), Assistant Attorney of the State Attorney’s Office in Administrative Litigation Montevideo (URUGUAY) and Professor of Medical Law at the University of Montevideo (URUGUAY).
Art 1255 cc
(Civil) Pacta sunt servanda is one of the presiding principles of the general theory of contract and expresses that contracts bind the parties. Contracts are binding, have the force of law between the contracting parties, and must be performed in accordance with their terms (Art. 1091 CC). Their binding force is independent of the form in which they have been concluded and will be produced as long as the essential elements concur (art. 1278 CC), except in cases in which the form is an essential element. The binding force derives from the will of both contracting parties, not, for example, from the oath that may be taken (art. 1260 CC), and certainly will not exist when there is only the will of one, as would be the case if the validity and performance of the contract had been left to the discretion of one of the contracting parties, which would result in the nullity of the contract (art. 1256 CC).
Contracts are binding from the contractual consent (art. 1258 CC), unless they require some formality for their perfection, as occurs in real contracts such as the loan (art. 1740 CC), the deposit (art. 1755 CC) or the pledge (art. 1863 CC).
Art 1278 cc
Art. 1196. In order for set-off to proceed, it is necessary: (1) That each of the obligors is principally obliged, and is at the same time principal creditor of the other; (2) That both debts consist of a sum of money, or, if the things owed are fungible, are of the same kind and also of the same quality, if this has been designated; (3) That both debts are overdue; (4) That both debts are overdue; (5) That both debts are overdue; and (6) That both debts are overdue. (3) That both debts are overdue. 4.º That they are liquid and exigible. (5) That neither of them is subject to retention or dispute promoted by third persons and notified in due time to the debtor.
Art. 1198. The debtor who has consented to the assignment of rights made by a creditor in favour of a third party cannot oppose to the assignee the set-off which would correspond to him against the assignor. If the creditor made the assignment known to him and the debtor did not consent to it, he may oppose the set-off of the debts prior to it, but not that of the debts subsequent to it. If the assignment is made without the debtor’s knowledge, the debtor may oppose the set-off of the debts prior to the assignment and of the debts subsequent to it until the debtor had knowledge of the assignment.