The injury Peruvian Contract Law: When is appropriate? What to do if injury to a contract?
By: Chang Andres Guillermo Hernandez (**)
I. Introduction.
Everyone at some point we are in the need for another person to meet our economic needs. As the case of a parent who needs to sell a property to cover the cost of your child's surgery, but not always just find a contractor that required to meet the needs of our enormously untapped need, for example in the case of the parent may be that the contractor take advantage of the need first and purchase the highly priced well below its real value compared to this situation, our system provides the figure of the lesion, contained in Book VII of our Civil Code, whereby allowing the "injured" (not quite, since the end of the other contracting party to help the seller in our example) to terminate the contract or receive an amount adjusted to the actual value of the property; however, the legislature has not considered that, as noted by Dr. Alfredo Bullard, the application of such an institution discourages rescue operations, a view we share, not at all, implying the indifference of those who are willing to meet the needs of those who is facing a need, whether you do it for charity or for the purpose of obtaining a profit higher than in a normal market situation, because in the end the allegedly injured could request termination due to injury. In this regard, the present work, we analyze the cases to be taken to set up the injury and the actions to follow in case of being immersed in it.
II. We understand that the Contract injury.
Our Civil Code adopts the objective-subjective concept at the time of the injury through regular contracts, as for configuration must attend three elements: an objective and two subjective element, which will be discussed in due course.
doctrinal Argentine Luis Moisset Professor of Spain, defines injury as an institution that tends to protect the weak, the needy, to the person who is in a position of inferiority, economic, physical or psychological, against those who exploit the need and building on that position of superiority gets a contract unjust advantages. The most notable is the "damage" suffered injury or who receives less than his due, or pay much more than it should pay "
In our country the Civil Code, no clear definition of this figure, however reading of Article 1447, we can deal with one: "The injury would be the use of one side of the urgency of the other, provided that this use is reflected in the disparity of benefits is greater than two-fifths (minor injury) or less than two-thirds (major injury) "
Finally, on this point, we can conclude by saying that "The injury is a ground for rescission that applies where the injured suffered an economic detriment to a clear imbalance between the values \u200b\u200bof the benefit and the consideration existing at the time of conclusion of contract. The reason for the injury is that she tries to equate the situation of imbalance that often appear before an emergency, in which one party exploits the other's necessity for excessive economic benefit "
III. When we are faced with a case of injury?
The Civil Code Article 1447 states that the injury action for rescission may be exercised only when the disparity between the services at the time of conclusion of the contract is over two-fifths, where this disparity results from the use by one of the Contracting urgent need of another.
In this sense we can see that we are in a contractual injury case where three conditions sine quo nom first contemporary disproportionate to the contract more than the 2 / 5 parts between the provision and consideration (40%), second The pressing need of the parties to conclude the contract and third, the use of the other part of the urgency of the other.
In summary must attend an objective element and two subjective elements as we have noted
is important to note that these three conditions must be concurrent. Only the combination of these elements moves the mechanism injury, also the concurrence of the same can not proliferate maliciously termination contractual claims for injury, as well as "noted Dr. Max Arias-Schreiber, the position taken by the encoder of 1984 allows the figure is not used without limitation, causing chaos in the transactions and breaches of legal certainty.
IV. Requirements for appropriate contractual Injury
a-subjective elements urgent need of the parties .- This requirement is one of the two subjective elements that must be satisfied for the origin of the injury, and in doctrine means pressing need "this situation where the possibilities are extremely limited choice for situations where the injured are "as the case of a parent who needs funds for surgery for her youngest son, however - says Max Arias-Schreiber - the course described above is not exhaustive, since the injury so prevalent is that they reduce the freedom of the contractor, without necessarily having it be in financial difficulties because they are in need may have other motivations, as in the case of a trader is the need to acquire an asset which, by its strategic location, is of vital importance to it.
The position taken by the national legislature in the standard include the term "Sales Tax" really just wants to reflect a state of emergency, urgency, it has not been able to find other support for the use of such term sum up what matters in the lesion is urgent necessity of the parties.
b-Use of the urgent need .- This is another subjective elements of injury and refers to the situation in which the other party (not badly) take advantage of the urgency of the other, in the case referred to in Article 1447 of the Civil Code, which does precisely what that doctrine is called minor injuries, such use must be proved by the injured party, this is the burden of proof is in charge of the injured, while in the case of Article 1448 st our Civil Code, which provides what is known as Injury higher burden of proof is reversed by the injurious, ie use becomes such a presumption "rebuttable" the injurious must demonstrate the absence of such use. This requirement also implies a need to use the other hand, is not enough but the urgency of this need another contractor take some profit.
objective evidence. A-Disproportion
contemporaneous with the contract, over two fifths (40%) .- As has been pointed out that element is one of the criteria required to be set contractual Injury, to be precise and objective element is required, remember that the other two elements is subjective. Specifically
this element specifies that we are facing a civil injury case when, at the time of contracting (contemporary moment) there is a disproportion between the services, most of the two fifths, that is greater than 40% of the provision, making this requirement in the mathematical element of the injury. For example in the case of the sale of property "A" that recovered S /. 100.00 (which would be the provision by the seller), the 2 / 5 parts equivalent to 40% of that price which is equal to S /. 40, meaning that if the right "A" is sold to S /. 59.00 (consideration paid by the buyer), seller can claim injury, if the other conditions, as there is a disproportion of S /. 41.00, which the disproportion is May 2 / 5 parts or 40% of the benefit (the well was valued at S /. 100.00).
The example cited in the preceding paragraph, used to say that enough, in that case, the sale takes place at a price of S /. 60.00, and although there is an imbalance between the provision (good value "A" = S/.100.00) and the consideration (price paid _ S /. 60.00) it would be equal to S /. 40.00, that is equal to 2 / 5 parts, but would not exceed it, as required by rule, in this case no injury
Finally, regarding the elements necessary for you to configure the injury, it should be noted that the rule requires the concurrence of the three (other authors fall into two requirements: a-Disproportionality of benefits and 2 - Use of necessity) and the mere fact of missing one of them would rely on such irrelevant figure. Thus, it may be the case that even where exploitation by one party of the urgency of the other, there would be no injury, if there is a disproportion between the services. Similarly if there is a use of the urgent need for a party and while there is an imbalance between the benefits, do not open injury if this disproportion between the benefit does not exceed 2 / 5 parts. Neither injury open in case there is an imbalance between the benefits exceed the 2 / 5 parts if there was no use of the urgent necessity of the parties.
V. Where appropriate contract types Injury. As
, established in Article 1447 of the Peruvian Civil Code, the lesion extends to all typical and atypical contracts, provided they are a consideration and have commutative character, even in contracts must also random, when the imbalance occurs for reasons extraneous to the risk of their own.
For his part, Manuel de la Puente y Lavalle noted that the applicable field of the lesion is made up of all those onerous contracts, among which are included multilateral contracts with benefits, whether mutual or self. Not applicable in transactions and public auctions "
this regard the Supreme Court of our country through Cassation Case No. 3133-97, LIMA, said:" The institution of the injury are provided for in Article 1447 Civil Code, and it covers all typical and atypical contracts are provided for consideration or are commutative character, except the second paragraph of that article. Onerous contract is defined as one in which there is for each of the parties a sacrifice and an advantage, and the contract is commutative when each of the parties, when concluding the contract is aware of a fact and concrete, as estimated in advance of slaughter and correlative advantage "
VI. Disproportionality assessment.
this regard our Supreme Court justice in the sentence passed on 1760-92 record-LIMA (28/06/1994), states: "For the admissibility of the application for withdrawal through injury, is essential for recovery of the property at the time the contract was held to determine the disparity referred to Article 1447 Civil Code. And there are certain irregularities in the technical expertise made, the judge should not dismiss the complaint, but ordered the construction of new assessments. "
Just as it is important to determine the existence of the conditions essential for the origin of the injury, so is determining when to assess this disproportion between the services, the article Substantive Code No. 1449 states that "The disparity between the benefits are assessed according to the value having the time of contracting, to appreciate, in this article notes that one of the highlights from the injury is that the imbalance between benefits there at the time the contract is concluded and no one back, which distinguishes it from the excessive cost of the provision (Art. 1440 °. 1446 °), where the gap between the performance becomes excessively burdensome for extraordinary and unforeseeable events after the conclusion of the contract, in this sense can be seen in the case of injury, that the disproportion of benefits should be decided in accordance with the same value at the time to perfect the contract, we understand by perfection of the contract when the acceptance is known by the offeror, when and where it is performed as stipulated in Article 1372 Civil Code, this is the time and place of the contract.
VII. What should the alleged injurious to a claim of Termination for Injury.? Whoever
sued for rescission of a contract for an alleged injury, first you must require the applicant to demonstrate the use of urgent necessity, in case of minor injury (upper disproportion the 2 / 5 parts) remember that according to the formula of Article 1447 the burden of proof of injury is borne by the applicant (Injured), something different happens in case the injury is less than the 2 / 3 parts , where the use is presumed, is that the burden of proof is reversed by the defendant (of course, who in this case has to prove that no such use). Returning to the subject and for practical purposes we will refer to only minor injury in these cases, as stated, the defendant may challenge that has taken advantage of the urgent necessity of the other party. Similarly, in case that proves the use of urgent necessity, the defendant may counterclaim value adjustment, as established in Article 1451 °, which states, "The defendant may counterclaim value adjustment. In this case, the sentence will have to pay the difference set value, plus the legal interest, within eight days, failing which declared termination of the contract "be stated that the rule states that the respondent may reconvene the value this is proposed in the same letter in which they answer the complaint, a different value to that reported by the applicant of the benefit received. Being for the Peruvian doctrine, Article 1451 sustain to propose readjustments in the process of counterclaim. Likewise, if the defendant can enter within the period to answer the complaint, the difference in value demanded by the plaintiff, it will be defunct process (Art. 1450 CC), and therefore no gap and no injury to rescind.
Meanwhile, as noted Luis Moisset of Spain, our contractual system as almost all modern systems, gives the victim of wrongful act two actions, the termination and reset
VIII. Important Aspects of Injury Contract.
Previously, efforts have been important aspects that allow us to determine When we are in a case of injury? What are your requirements?, Etc. However, we need to highlight some aspects, not least, the injury covered by the Civil Code:
- No Waiver of Action for Injury .- Article 1454 Indeed · points which is no renunciation of action for injury, property we believe successful, because if the injury is to protect those who, in case of need are selling or buying goods, and there is disparity between the services, it is obvious that this need was forced to step into action by injury.
- Expiration of action through injury ..- Our civil system, involves two moments that can expire the right of action for injury, eye speaks not of limitation, the first six months of delivery accomplished by the injurious, and the second two years of the contract, it has been regulated under Article 1454 of the Civil Code.
- Inapplicability of action through injury .- By their very nature, is outside the scope of the injury, transactions and sales by public auction.
- lesion on the partition .- Article 1456 states that it can bring an action for injury to the property owner who has alienated more than half the value on which they were awarded.
First we must point out that Article 1456 ° is one of the most obscure or ambiguous, in the title of the injury, in the foreground can be seen, as it aims Moisset of Spain, which has eliminated the requirements of "Injury to the partitions, as an institution differential, working in a change in article 990 ° of a reference to the application of general rules for injury. For his part, Dr. Arias-Scheriber, notes that the rule wrongly referred to the owner, when it should talk about who had that quality, which obviously was lost when the award.
We left sitting the shortcomings of the standard we can only treat to interpret the meaning of its proper implementation. Article 1456
It establishes "that can not bring an action for injury, the property owner who has alienated more than half the value on which they were awarded." This is necessary to establish that one way to reach the award is the partition and know that Article 983 ° of the CC, said that the partition co-owners swapped, giving everyone the right of the assets is not awarded, for the right to give him in which are vested. In this regard, returning to explanation, the rule of Article 1456 ° refers to cases in which if a partition one of the ex - co-owner, in the part that is awarded, there is a disparity as to warrant the injury, if you decide to dispose of it awarded to a third party may not be triggered by injury to his ex - co-owners, as the act of alienation a third, is seen as the renunciation of action for injury against his former co-owners. However, this does not mean the part that alienates a third after the award, may take action against it, because the scenario is different and in this case is governed by the general rules of the injury.
IX. Final scope and Clarifications.
As we appreciated the lesion in our system of contract, seeks to protect the injured party in a contract in which there is a disproportionate benefits in excess of 2 / 5 parts and also there advantage for one party to the urgency of the other, however, often the prerequisite for establishing injury are not clear, for example, in determining the value, Dr. Roxana Jiménez Vargas-Machuca, said that for some people a good may be worth more or less than another person, which would make it difficult to determine its exact value, but we believe that in determining the exact value of the property, you must put aside all kinds of subjective influence (family value, emotional, etc.) and only submit to an appraisal by experts where only consider objective factors such as market value, for example. Another criticism made of the injury, is that made by Dr. Alfredo Bullard, who, referring to the biblical parable of the bad Samaritan, said that the figure of the injury and therefore discourages behavior limits the traffic contract. The statements made by Professor Bullard, highly respected position, but we can not prefer self-employment at the cost of harnessing the necessity of a person, because we do not believe that discouraging behaviors when the parties can agree on its benefits, even vastly disproportionate, as long as this does not result from the use of such state necessary. For example if A buys a car valued at S /. 100,000.00 to "B" in the amount of S /. 58000.00 (greater disparity exists at 2 / 5 parts), but "B" (a millionaire and such sale does not cause injury) suffers no need for what "A" is not used at all, in such case if later " B "requests the termination of injury would not proceed because they lack one of its requirements (urgent need).
Another aspect to consider is the difference that determines the disappearance of the lesion, for example in the case of the property, valued at 100 to be bought to 59, where there is more than 40% disparity (The limit is 60), in this case would be only appropriate the difference to reach the limit (bone 1) or to appropriate the difference to get the amount of recovery of the property (ie pay 41), we believe it would be appropriate only the difference to reach the limit set by law
In conclusion, we reiterate that this institution does not conduct discourages or restricts the trade, but protects those who suffer exploitation of their needs, remember that the injury should be should attend the three requirements previously studied.
* Lawyer from the Universidad Nacional San Luis Gonzaga de Ica
Post-Graduate in Civil Law from the University Castilla - La Mancha in Toledo - Spain, Professor of the Universidad Privada San Juan Bautista - Affiliate Ica
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