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Some Notions About the Breach of Contracts


This article aims to concisely study the legal treatment of the breach of contracts between Colombian law and common law.


First of all, to introduce, in both systems, a breach is mainly used to identify that one of the parties involved into the contractual relationship cannot comply with its obligations. However, regarding its configuration, the implications may vary between them. For instance, in common law, the breach is given almost objectively; even a delay in payment could already be considered as a breach, while in Colombian law, there exist more involved criteria to define a given action as a breach.


Regarding the type of contract breach, there exist two types: The minor and the material breach. The former one gathers the cases when one of the parties does not receive an item or service by the due date. Material breaches refer to when one of the parties receives something different from what was stated in the contract, either in quantity or quality.


However, the previous one is not the unique way to classify branches, there also exist more categories that are frequently used: an actual, or an anticipatory breach.


In common law, breaches happen when one of the involved parts breaks one of the terms of a contract. In fact, this ill-compliance may cover critical obligations like not performing the main object or when a is not completed in the time stated in the contract. However, when the parties are facing a breach of a given contract, generally, the agreement must also cover a procedure for dealing with it. If not, the parties may address this situation by considering some remedies, for example, leading to a new contract, adjudication (claiming through the court o justice system), or another type of resolution.


On the other hand, in Colombia, the contractual law is strongly controlled by the context where the contractual relationship is settled and could be civil, commercial, public, etc. Article 1546 of the Civil Code, under Colombian Civil Law, provides the resolutory condition, which refers to any bilateral contract that can be terminated if any parties do not comply with the agreement. In Colombia, the general rule establishes that contractual responsibility is subjective, unlike the objective of common law. For this reason, when analyzing contractual disputes, Colombian judges must go beyond verifying the occurrence of non-compliance (objective liability). The guilt and intent of the call to answer for non-compliance must be analyzed in judicial activity, even to demonstrate that the breach has a valid basis.


Regarding the damages produced by a contract breach, they can be expensive, so the goal of contract law is, from an economic standpoint, to leave the damaged party in the same position that they would have been if the breach had not occurred.


However, comparing the Colombian regulation when the common law, breach of contract is not as objective as it is in the common one, but rather the subjective reasons for which the contractual provisions were breached are evaluated. As a matter of example, in the Colombian context, in case of a breach, it is possible to claim to the judge either the forced performance or the corresponding compensation, but the judge must study the reasons given by the breached party, who must demonstrate that the breach has a valid basis.


To conclude this brief analysis, it should be clear that, currently, institutions such as UNIDROIT are in the process of unifying private law in the world, so that issues such as breaches have equal treatment throughout the world, which would have countless advantages in several aspects, for example, in international sale of goods and in that way, give more scope to instruments such as the CISG. Therefore, the differences that exist between the two systems become evident, so that every day it becomes more necessary to unify the law, even when transnational transactions are as simple as a click, the law has to be updated to this new context, contractual disputes are more common each time and with the increase of globalization the law is lagging.









Paralegal



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Porfirio Sanchez Abrego
Porfirio Sanchez Abrego
Apr 05

Pelmazo.

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