The concept of what a contract is continues being the same as the one written in Civil Code in 1889, “a contract exists since one or a group of persons agree on obligating, one over another, to give something or provide a service”. In a contract is possible to designate the objective, legal situation coming from the contract and which originates rights and obligations for all included parts, with no variations due to the environment (market, business…). (Ministerio de Gracia y Justicia)
The elements of a contract can be defined as essential, natural or accidental.
Those elements that are previewed for each type of contract and are going to be part of it, unless the parties decide to erase them.
Accidental elements are those introduced by the parties in the contract, based on a principle of intention to contract.
Those that are necessary for the contract to exist. They are included in the article 1,261 of the Civil Code: offer and acceptance, certain object which is subject of contract, and obligation cause stablished. (Rodríguez 2016)
Offer and Acceptance
According to the article 1262.1 from the Civil Code, “acceptance is manifested by the concourse of the offer and acceptance about the matter and cause, which ought to constitute the contract”. Offer and acceptance are declarations of will done at the same time. Frequently they are included in one single document, signed by both parts at the same time. However, it can occur that they are issued in different moments and places, even if it is not reflected in the documents.
It should also be taken into account that the form is not an essential requisite of the contract, so the offer and acceptance are not subject to any form. (Derecho en la Red)
The Intention to Contract
This is the base of the general theory of Law. It implies the acknowledgement of a power to regulate the objectives and interest desired by all parties. It is the base of contracts as well, which means that the individual has freedom to decide over contracting or not; also, parts have a total freedom of choice regarding the type of contract; parts can freely celebrate atypical contracts; and finally, parties have the capacity to modify the content of the typical contracts. However, contractual freedom has a series of limits stablished by the Civil Code. (Iberley)
Capacity to Contract and Minors
The following groups cannot give consent (Sanahuja Miranda Asociados):
- Minors who are not emancipated (unless those contracts allowed by law to be done by themselves or with assistance of their representatives, and contracts related to goods and services typical to their age and social uses).
- People with legally modified capability, in the legal resolution agreed terms.
In case of minors who are emancipated, this situation will take place under the following circumstances:
- Being 16 or more.
- Agreement of those owning the custody.
- Legal concession.
Corporations or Legal Persons
Legal persons, as they have their own legal personality (which is independent to the ones of each of their members), they have the complete capacity to act and stablish contract relationships.
Persons of Unsound Mind
They can intervene in contracts as long as they are legally assisted when necessary. The necessary figures to include are:
- Guardianship: authority given by law to an adult to take care of a person and his/her goods when not able to do it alone.
- “Curatela”: legal institution by which the person named to complement the capacity of the disabled does so, in all acts and legal businesses necessary.
- Legal Defendant