Essential Elements of Contracts
Essential Elements of Contracts
SUBJECTS.
According to Sayagues, one of the parties is always a state organ acting in an administrative function, and the other party may be a private person, natural or juridical, or a non-state public person. Art 33 of TOCAF Art 46 of TOCAF
It should be noted that the private party may not be an employee of the contracting administration, may not have been declared bankrupt, be in liquidation or be in insolvency proceedings, may not have defaulted on previous contracts, and may not have been habitually engaged in the trade or industry to which the contract corresponds. Law 15903, art 487, Art 46 of TOCAF.
The authorizing officers are established by art 26 of TOCAF, and the primary authorizing officers are specified in art 27 of TOCAF, and the secondary authorizing officers in art 29 of TOCAF. In both cases they may delegate authority, art 30 TOCAF.
The official may not commit the administration, not being the authorizing officer of the expenditure, it will be considered a serious misconduct. Art 32 of TOCAF.
WILL - AGREEMENT
Both wills must be valid. The rules relating to error, violence and dolus are the same as those governing the contractual ties of the administration. The general rule is that the administration cannot manifest its will tacitly, with some exceptions.
CONTENT - OBJECT
The natural part is identified (intrinsic part, it must necessarily exist, necessary so that it is not erroneously labeled as it happens with the so-called service lease contracts when they are public service concession, it impacts on what type of general specifications I will use), the implicit part (it integrates the contract although nothing has been established) and the eventual part (it may or may not be included according to the resolution in each case).
ARBITRATION CLAUSE. In principle they are admitted, however, in accordance with art. 550 of the Civil Procedure Code, all cases requiring the intervention of the Public Prosecutor's Office are excluded from arbitration.
CAUSE
Essential element of the contractual ties entered into by the administration. In administrative acts, instead of cause, we speak of motive.
PURPOSE
When the administration pursues a hidden improper purpose, the contract becomes invalid. Likewise, when the deviation of power is computed as a vice of the acts, it extends to administrative contracting.
FORM
Like administrative acts, contracts are formal, so that formalities are of special relevance. Contracts are formal, so their compliance conditions their validity. In Uruguay, although there are no special general forms, contracts must be executed in writing without the need for a public deed, except for solemnity requirements. It should be noted that the formalities are the requirements to be observed in the execution of the contract, which may be prior or subsequent; the form refers to the way in which the contractual link is documented.
--PROCEDURE.
The procedure for the formation of the administration will is of an internal nature, consisting of one or more administrative acts, and material operations.
ELEMENTS
SUBJETIVE
Following Rotondo, there are two subjects, one of them is the public administration, with the performance of the legal rule and the corresponding organ, acting in administrative function. The organ must act within its competence. The individual must have civil capacity and not have impediments established in art 43 of TOCAF. It must also be registered in the general registry of State suppliers, Art 65 of TOCAF. When applicable to public works contracts, the individual must be registered in the national registry of public works companies of the Ministry of Transportation and Public Works, established in Article 66 of TOCAF.
--AGREEMENT
It is mutual consent.
OBJECTIVE
It is the content, the work, service or provision for the purpose of public utility. It must be a certain content, physically and legally possible and determined or determinable. Both parties cooperate, there is no longer a clash of interests by acceptance of the doctrine.
--MOTIVE or CAUSE.
It has an objective character, it is the factual situation
FORMALITIES
It is the way of externalization of the contractual bond. Among them is the selection of the co-contractor.
--PURPOSE
Refers to the purpose pursued by the administration. If the purpose is vitiated, we are facing a deviation of power. Sayagues exemplifies the case of the concession of a public service granted to achieve ruinous competition of a previous concessionaire and then allow the expropriation of its facilities under more favorable conditions.
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