What happens if an essential clause is missing from a contract?

Actualizado25 de July de 2023

PorImperio Rojas

What happens if an essential clause is missing from a contract?

The lack of an essential clause in a contract can have different consequences, depending on the type of contract and the ineffectiveness that occurs. Some of these consequences are:

Non-existence: occurs when any of the essential elements for the formation of the contract are missing, such as consent, the object or the cause. In this case, the contract does not produce any legal effect and is not subject to validation or prescription.

For example, in the event of entering into a contract without an agreement between the parties on the object thereof, the contract will be non-existent.

Nullity: occurs when the contract is contrary to an imperative or prohibitive rule, morality or public order. In this case, the contract is null and void and can be so declared by any interested party or by the ex officio judge. The void contract does not produce any legal effect and can be challenged at any time. The parties must return what they have received under the contract.

For example, if a contract for the sale of a non-seizable asset is entered into, the contract will be void.

Annullability (or Voidability): occurs when the contract suffers from some vice or defect that affects its validity, such as error, fraud, violence, intimidation or injury. In this case, the contract is valid as long as it is not canceled by the injured party or his legal representative. The voidable contract produces legal effects until it is annulled judicially or by confirmation of the parties. The term to exercise the annulment action is four years from the date the vice or defect is known.

For example, entering into a contract under threat means that it will be voidable.