"General Theory of the Right of Obligations ”: Unilateral withdrawal of the mandatory relationship
Unilateral withdrawal (in TGDO) is defined as the power that, traditionally grants in the business constituting an obligation or ex lege, allows both parts of the mandatory relationship, to end it discretionally, that is, without the need for justification or cause. This power to give.
This term of unilateral withdrawal is surrounded in our right of difficulties such as terminological imprecision (8) probably caused in case asystematic and fragmentary regulation in our legal system, which only regulating specific assumptions (with different terms for each of them) lacksa general regulation. The reason for being of this lack is, perhaps, the difficult reconciliation of this figure with our right of obligations.
In relation to the above, the position of our Civil Code, which includes this institution in relation to the work contract, which uses the term “desist” (art ”(art. 1594 "The owner can give up, according to his own will, of the construction of the work although it has begun, compensating the contractor of all his expenses, work and utility that he could obtain from it"). Regarding the company contract, in which he speaks of "resignation" (art. 1700. 4: “Society is extinguished: 4. For the will of any of the partners, according to the provisions of articles 1705 and 1707 ”. Art. 1705: “The dissolution of society for the will or resignation of one of the partners only takes place when no term has been indicated for its duration, or this is not of the nature of the business. In order for the resignation to take effect, it must be done in good faith in a timely manner and also must inform the other partners ”). And, in terms of mandate, it refers to "resignation" and "revocation" (art. 1732.1 and 2: “The mandate is over by: 1.- Its revocation (of the plaintiff), and 2. – For the resignation or inability of the president ". Art.1733: "The principal can revoke the ad nutum mandate, and urge the president to return the document in which the mandate is recorded". Art 1736: “The president can give up the mandate by making him aware of the principal. If he suffered any prejudice for the resignation, he must compensate the president of them, unless he melts his resignation in the impossibility of continuing to carry out the mandate without serious detriment ”. Art. 1737: "The president, although he renounces the mandate with a fair cause, must continue his management until the principal has been able to take the necessary provisions to occur to that fault")
We could say that this does not fit well with the rule that the existence and execution of an obligation is not at the discretion of one of the parties, given that, as a faculty adjusted to the exclusive will of those who had to execute it, it could be considered void according toThe provisions of articles 1115 and 1256 CC (because “when compliance with the condition depends on the only will of the debtor, the conditional obligation will be null” and because “the validity and compliance with the contracts cannot be left to the arbitrationof one of the contractors ". On the other hand, it cohesive well with rules, which placates the previous. 1538 CC: "That contract made for a lifetime") will be declared void.
Consequently to the specific legal assumptions that this figure contemplates, we can observe that, despite the fact that on certain occasions its foundation is in the primacy of the interest of one of the parties, or in a fiduciary or intuitu persone of the relationship, the relationship, theAttribution of law ad nutum (at will) responds to the purpose of creating a tool that enables the contractors to disconnect from a relationship constituted by an indefinite period (eg. Society contract), which brings cause of the prohibition of perpetuity in legal relations and, ultimately, of the protection of individual freedom.
This unitary relationship will allow, apart from the legal assumptions, the doctrine and jurisprudence adapt to our right the free withdrawal as a general principle applicable to other cases other than those foreseen ex lege and to those agreed, in which their theirCommon denominator is that there is a necessarily lasting or successive tract relationship that lacks a contractual term in terms of duration (indefinite). In these relationships, typical or atypical, which extend over time and whose non -default benefit depends on the deadline, withdrawal, we can affirm that it is a necessary instrument to alleviate the indefinite or perpetual link of the contracting parties. With this instrument, the parties are allowed discretionary from the contract (of supply, of services, of exclusive commercial distribution, etc.) established for an indeterminate time (9). To summarize, paraphrasing Parra they look beyond the cases of withdrawal as a mechanism to end a legal relationship, on those relationships based on the mutual trust of the parties, in which it is not difficult to find reasons for the just cause of withdrawal, such as the disappearance of trust, the change of circumstances and, ultimately, the prohibition of those indefinite or perpetual links.
For the cases that proceed, complying with the principle of good faith (10), the withdrawal operates for the successive the disappearance of said mandatory relationship, which will be extinguished from the moment of its notification or from the future date noticeable, except in theassumption of the inadmissible exercise of withdrawal, in which case the relationship lasts until the right time comes. According to various authors, as a rule, the withdrawal requires a declaration of will of a receptive nature, which does not seem to require a special form;This declaration of will must be addressed to receive it and it is not necessary for it to cause effect, unless the business granted by the power or law expressly demands, in which case the non -observance will cause the withdrawal to be ineffective. The requirement of good faith entails the need for a period of notice (with the aim of avoiding unexpected withdrawal) or the prolongation of the relationship for the time necessary for the other party to take measures before the extinction of the obligation and avoidthe prejudices that this can produce. Failure to comply with the notice term does not avoid the extinguishing effect, but must compensate for damages, such as by paying remuneration for the period of not respected not.
Therefore that relationship that has validly constituted and that has already produced legal effects is extinguished by the withdrawal with efficiency ex nunc, carrying with it (in the face of the taxpayExhaustion of the relationship, that is, the withdrawal entails some contractual settlement duties that lead to the repair of the damages caused by the frustration of the contract, so that that part that supports the exercise of the power to give up is unscathed (11).
On the other hand, in terms of withdrawal in the general theory of obligations, it has nothing to do with the right of withdrawal, which has been regulating the special laws in the field of consumers and which is currently reflected in therecent consolidated text of the LGDCU. In this recent area, it can be affirmed that the power to givecontract, which can be of successive tract or instant execution, for a short period of time after perfection of said contract.
Thus, we are before different institutions with very different foundations and logic, whose denomination should not lead us to equivocals. Although, in our doctrine it is oftenWe are in the presence of a single legal institution. It can be seen in broad strokes, among the differences, the one related to the legitimation, which, in terms of the withdrawal of the "general theory", can be granted to both parts of the mandatory relationship, the same faculty regulated in the lawsspecial and in the LGDCU is attributed only to the consumer, which will be the only legitimized for its exercise. In this way, we can say that the above is consistent with the diverse basis of one right and another, whose essence is to avoid the perpetual linking of the contracting parties in a mandatory relationship, and carry out the effective protection of the consumption guaranteeing a correct and freechoice of your consent, in the other case. This is why withdrawal is a free right for the consumer, since the withdrawal of the "general theory" forces the contracting party who exercises him to cope. In addition to this, it is worth mentioning the different effectiveness that causes in the first case (ex nunc) and, in the withdrawal of the consumer (ex tunc), which in relation to the right regulated in the special legislation has an indisputable inalienable and imperative character and, most likely, device in the case of "general theory".
Once the most important differences are analyzed regarding these two institutions that receive a similar denomination, we will make a brief reference to another of the particular rights of the consumer: "the right to end the contract" that, also based on the need for theirprotection, we must also distinguish it clearly from your right to regret or decide on the contract.
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