STUDIES ON SPANISH-PHILIPPINE PRIVATE LAW
Papers of the Private Law of the Philippines and Spain International Scientific Congress

INEFFICACY OF CONTRACTS: DIFFERENT CATEGORIES

Yolanda Bergel Sainz de Baranda
Dr. Dr. H.C. Profesora de Derecho Civil
Universidad Carlos III de Madrid
ORCID: 0000-0002-9900-7020

Abstract: The rules in the Spanish Civil Code have had an obvious influence in the regulation of the inefficacy of contracts in the Civil Code of The Philippines. The regulation of nullity, voidability and rescission of contracts is strikingly similar as we can see in this study.  However, the Civil Code of The Philippines has organized the categories of inefficacy in a more reasonable and structured manner.  Furthermore, the Civil Code of The Philippines regulates a particular category of inefficacy that does not exist, as such, in the Spanish Civil Code; the unenforceable contracts.

Key words: Inefficacy of contracts. Categories. Nullity. Voidability. Rescission. Unenforceable contracts.

1. Introduction
This paper has been prepared for the international Congress held at the University of Málaga on April 16 and 17, 2015 regarding the Private Law of The Philippines and Spain.  My intervention in the Congress related to the ineffectiveness of contracts and the different categories of inefficacy of contracts. My first intention was to give a comparative legal view about the different categories of inefficacy in The Philippines and Spain.  But then the writer was stricken by the similarities between the provisions in articles 1.290 and following of the Spanish Civil Code (hereinafter also “SCC”) and articles 1.380 and following of the Civil Code of The Philippines (hereinafter also “PCC”).  Only the existence of the “unenforceable contracts” in the Civil Code of The Philippines seemed to make a difference between the two Codes. Therefore, it looked more interesting to explain the Spanish rules about inefficacy of contracts and point out those matters where differences can be found it the two regulations, and then analyze the category of “unenforceable contracts” in the Civil Code of The Philippines from a Spanish Civil Law perspective.

We shall see during this study that the Civil Code of The Philippines has learned from some of the mistakes made in the Spanish regulation and adapted its rules to avoid such mistakes.  The most relevant proof of it is probably the use in the Civil Code of The Philippines of a correct terminology that clearly differentiates between “void” (arts. 1.409 to 1.422 PCC) and “voidable” (arts. 1.390 to 1.402 PCC) contracts, whereas the Spanish Civil Code refers to “the nullity of contracts” in articles 1.300 to 1.314 SCC.  But that Chapter 1 mixes rules relating to the nullity of contracts with others relating to their voidability.    However, most of the provisions in that Chapter regulate the category referred to as voidability, because such contracts can be invalidated but, in principle, they produce effects. For example, article 1.300 SCC provides that “contracts fulfilling the requirements specified in article 1.261 might be annulled2, even if there is no injury for the contracting parties, whenever the contract has any of the vices which invalidate them according to the law”, and article 1.301 SCC that “The action for the nullity of a contract must be brought within four years 3”. It has been for the Spanish scholars and courts to determine to what kind of ineffectiveness was each article in the Code referring to 4.  We shall use this terminology (nullity/voidability) in this study as it is nowadays generally accepted.

2. Ineffectiveness of contracts under Spanish Law
A contract is ineffective when it does not produce the effects wished for and which can be reasonably expected from that contract. This lack of effects results from the fact that there is a divergence between the contract as foreseen by the legal system and the contract which has been executed by the parties. The contract was not executed in accordance with the provisions of the legal system and therefore it does not produce effects, although depending on the type of inefficacy the contract might start to produce effects and stop having them afterwards.

There are three main5 categories of ineffectiveness regulated in the Civil Code:

1. Nullity: null contracts have such a far-reaching defect that it impedes that the contract produces any effect whatsoever. Nullity is the strictest sanction to a contract as the legal act is completely deprived of legal consequences. Quod nullum est nullum effectum producit.
2. Voidability: voidable contracts have a defect, but they are valid as long as they are not challenged due to the existence of such defect. In a voidable contract there is a cause of voidability that can be claimed by only one of the parties to destroy the effects of the contract which was effective up to that moment.
3. Rescission: rescission is the ineffectiveness stated by law for contracts which, although having all the essential elements and not having any defects therein, entail a prejudice for certain persons to whom the law provide with an action to stop the contract from being effective.

We have to point out that there are some scholars who split ineffective contracts in two groups: “invalid” contracts and “ineffective” contracts strictu sensu. Invalid would be those contracts which defects are of an intrinsic nature, affecting the essential elements thereof. Ineffective contracts strictu sensu are those contracts that have defects extrinsic to the contract which may lead to its lack of effects; such as an agreement between the parties to render it ineffective (mutual dissent); the termination of the contract for non-performance; a condition precedent not taking place, etc. Other scholars do not admit this distinction due to terminology reasons and because in the case of what these scholars refer to as ineffectiveness strictu sensu there is not properly such inefficacy but the extinction of a contractual relation.

2.1. Nullity

A null (or null and void) contract does not produce any legal effects, it is a contract without legal efficacy (absolute nullity). A null contract is so from the moment of execution (ab initio). A null contract cannot be enforced. Therefore, it can never become effective through confirmation or due to the lapse of time 6. Nullity is definitive.

The cases of nullity of contracts are7 :

1. Contracts contrary to the law are null and void, unless such law provides for a sanction different than nullity (art. 6.3 and 1.258 SCC) SCC).  This refers to imperative Laws and not to dispositive Laws, the fulfilment of which is not compulsory. In this regard, see art. 1.409 (1) PCC that refers to contracts “whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy”.
2. Contracts lacking the essential elements thereof. Contracts lacking consent, object or cause shall be null and void (art. 1.261 SCC; see art. 1.318 PCC). Art. 1.409 (3) PCC refers to those “whose cause or object did not exist at the time of the transaction”.

Some scholars (CASTÁN) and some court decisions (ex. STS December 18, 1981 or March 8, 1994) influenced by the French doctrine refer to this case of nullity as “inexistence” of the contract in order to differentiate these contracts from those contrary to Law which they refer to as “null” contracts. Today the category of inexistence is studied within the category of null contracts8 .  We point this out because Chapter 9 (Title II) of the Civil Code of The Philippines refers to “Void and Inexistent Contracts” probably having in mind that French idea of the difference between contracts contrary to Law (art. 1.409 (1) PCC) and contracts lacking the essential elements (art. 1.409 (3) PCC).  Notwithstanding that, the Civil Code of The Philippines indistinctively speaks of void contracts or inexistent contracts in general (see arts. 1.409 and 1.410 PCC).

1. Contracts which object is not determined or is unlawful (arts. 1.271, 1.272, 1.273 and 1.305 SCC).  This refers to contracts which object is completely undetermined 9 or is out of commerce (extra commercio). See art. 1.409 (4) and (6) PCC that refer to contracts “whose object is outside of the commerce of men” and those “where the intention of the parties relative to the principal object of the contract cannot be ascertained”.  This latter case seems to be more related to the impossibility to interpret the contract (see, art. 1.289 in fine SCC), but in the end it is a problem of non-determination of the object.  See also art. 1.409 (1) PCC again for contracts whose object is contrary to Law.
2. Contracts with an unlawful cause (arts. 1.275, 1.305 and 1.306 SCC). The cause of a contract is unlawful when the contracting parties have a purpose that is contrary to the Law or moral and therefore it does not deserve the protection of the legal system. See arts. 1.409 (1) and 1.352 PCC.
3. Formal contracts lacking the required form for their perfection.  That is, contracts that do not comply with the form ad solemnitatem required for them by Law.  This case is not expressly provided in art. 1.409 PCC but in art. 1.356 PCC which provides that when the law requires a contract to be in some form in order to be valid such requirement is absolute and indispensable.

As we can see, the cases of nullity of contracts are the most extreme and serious. This is why the strictest sanction is chosen for them. Nullity is said to protect public interest.

Nullity operates ipso iure, which means that there is no need for a judicial declaration thereof or a legal action to be started for the contract to be null and void. Of course, when there are discrepancies between the parties as to the existence of such nullity or when one or both of the parties have undertaken a performance deriving from the null contract (in which case everything has to go back to the situation previous to the contract because such contract would be considered as never executed) they might have to take the case to Court, but the decision of the Judge will only have a declarative nature.

The action to claim for the nullity of a contract at Court can be started at any time10 , there is not term for it.  And it can be done by whoever is interested in the declaration of nullity. Anybody with a rightful interest can invoke the nullity, and it can also be declared ex officio by the judge. This derives from its public interest nature. The Supreme Court has decided that even the person responsible for the nullity is entitled to bring the case for the declaration of the nullity to Court 11.

Finally, it has to be said that nullity can be partial. It might be that only a part of the contract is void. Our Civil code does not contain a specific rule about this possibility12 (the Civil Code of The Philippines does in art. 1.420 PCC). Therefore, if the nullity of a stipulation should entail the nullity of the whole contract or only that of such null stipulation while the rest of the contract remains in force shall be decided in a case by case basis. In principle, the Courts will tend to establish a partial nullity in favour of the conservation of the legal act (for example nullity of the unfair clause (but not of the whole contract) in a mortgage loan contract fixing an extremely high yearly default interest).

2.2. Voidability

A voidable contract is in principle effective, but it can be rendered void if the cause of voidability is asserted 13. This because voidable contracts have all the essential elements required in article 1.261 SCC (consent, object, cause) and are not contrary to law, but have a defect that might lead to their invalidity. Voidability is also referred to as relative nullity.   More than public interest (like nullity) voidability protects private interests; generally the interest of one of the parties to the agreement. If the cause of voidability is maintained by the party who is entitled to do it, the contract shall become ineffective with the same extent as if it was null and void14 .

The similarities between the Spanish and the Philippine regulation of voidability are, as we shall see, even greater than with regard to nullity.  

The causes of voidability stated by the Spanish Civil Code relate to vices in the formation of the consent or defects in the necessary capacity to conclude the contract. The causes of voidability are the following:

1. Vices of consent (art. 1.261 SCC): mistake, violence, intimidation or fraud. See art. 1.390 (2) and 1.330 PCC.
2. Lack of capacity to act. The contract is voidable if the contracting party does not have the necessary capacity to do so 15.  See art. 1.390 (1) and 1.327 PCC.
3. Lack of marital consent for the execution of onerous 16 acts when such consent is required (art. 1.322 SCC). Such consent is necessary, for example, to sell the family’s dwelling, no matter if it only belongs to one of the spouses (arts. 1.320, 1.322 and 1.377 SCC).   This case of voidability is not mentioned in art. 1.390 PCC but can be inferred from arts. 115, 166 and 173 17 PCC.

Voidability does not take place ipso iure, it is necessary that the corresponding action is started for it to be established by the judicial authority.  The action is necessary because, if it is not exercised within the proper term, the contract is purified, that is, is becomes definitively valid.  However, it might be that the contracting parties consider the contract voidable and therefore that they abandon it, without going to court (although these cases are few in practice because the parties generally seek for the return of the things exchanged and not for the mere declaration of the voidability).
The action for the declaration of voidability can only be brought to Court by the person whose interest is being protected18 . It cannot be done so by the party who caused the voidability (art. 1.302 SCC; see art. 1.397 PCC). Furthermore, the action has a term of expiration of four years19 , which cannot be interrupted or suspended 20. Article 1.301 SCC determines the dies a quo to start the action depending on the case of voidability concerned. Once the term of four years has elapsed without the action for voidability having been brought to court, the contract shall be considered to be valid and can no longer be challenged.
According to article 1.301 SCC the four years term starts to run: (i) in the cases of intimidation or violence, from the day on which they have ceased; (ii) in the cases of mistake or fraud from the consummation of the contract; (iii) in the case of contracts celebrated by minors or incapacitated persons from the moment they are released of guardianship (although their legal representatives or the curator could have started the action during the period of minority or incapacity); and (iv) in the case of contracts entered into by one of the spouses without the necessary consent of the other, from the date of dissolution of the marriage, unless the other spouse had had sufficient earlier knowledge of such contract. The wording of art.1.391 PCC is very similar to that of art. 1.301 SCC 21 with the exception of the starting point of the action for mistake or fraud, which in the Spanish Code starts with the consummation22 of the contract whereas in the Code of The Philippines starts with the discovery of the mistake or fraud.  The solution in the Philippine Code follows the one existing in France and Italy 23.  The fact that the term to bring the action to court starts to run from the moment of discovery instead of from the moment of consummation of the contract is very important because it can certainly extend the period of time during which the action for voidability can be exercised.  The solution in the Spanish Civil Code was adopted for reasons of legal certainty because it was understood that fixing the dies a quo in the moment of discovery could lead to arbitrary solutions because such moment is an interior fact of the person difficult to demonstrate (DÍEZ PICAZO).  Although this is true, it can also be said that the solution adopted by the Spanish Code entails that the action for voidability can be extinguished before the party knows of the mistake, banning such action for the affected party who should opt for a different action (for example, termination for non-performance), if possible, or be left without the possibility to claim 24.

Once the term of four years has elapsed without the action having been brought to court, the contract shall become valid and can no longer be attacked for such cause.

On the other hand, voidable contracts can be confirmed. Confirmation is the declaration of will of the party who could ask for the voidability of the contract making valid and effective the act 25 of the law which was affected by a cause of voidability. Confirmation purifies the contract affected by a cause of voidability and it does so, with retroactive effects, from the moment of perfection of the contract (art. 1.313 SCC; see art. 1.396 PCC).  Of course, for the confirmation to be valid it is necessary that the cause of voidability is known to the party who could raise it and that it has stopped.

Confirmation can be express or tacit. Tacit confirmation exists when the person who could claim for the voidability behaves in such manner which is incompatible with the exercise of the action asking for voidability (art. 1.311 SCC; see art. 1.393 PCC).

2.3. Consequences of the nullity and voidability

As we have said, when the cause of voidability of a contract is asserted and the contract is avoided, it shall have the same consequences as if the contract was null and void.

The common outcome of the ineffectiveness of contracts due to their nullity or to the maintenance of the voidability thereof is that the contract does not produce effects (nullity) or shall not produce them the contract that initially had effects (voidability).

Once the nullity or voidability of a contract is declared, the parties shall have to give back whatever goods or rights they had exchanged. Article 1.303 SCC26 provides that, once the contract has been declared ineffective «the parties shall return to each other the things which have been the subject matter of the contract with their fruits, and the price paid with interests, without prejudice to the provisions contained in the following articles27 ». In principle, the solution preferred by the Code is the restitution in natura, that is, the return of the things actually exchanged by the parties (art. 1.303 SCC). If such return is no longer possible because the goods have been destroyed in the meantime, the obligation to return the goods is turned into a monetary obligation. In this regard, article 1.307 SCC28 provides that if a party cannot return the thing because it has been lost, that party «must return the fruits collected and the value of the thing when lost, with interests from the same date». The solution in art. 1.307 SCC refers to the loss of specific things, but can be extended to all cases in which restitution in natura is not possible.

Furthermore, the declaration of nullity and the voidability of a contract affect subsequent transactions based on the initial ineffective transaction 29. For example, in the case of an ineffective contract of sale the object might be claimed from subsequent buyers. Nevertheless, successive holders are not affected by the ineffectiveness if they are protected in their acquisition (e.g. because they have acquired through prescription or are protected by art. 34 of the Mortgage Law). If the third party is protected, the obligation to return is turned into an obligation to give compensation.

The obligation to return in art. 1.303 SCC is compatible with the compensation for damages in case the contracting party acted with negligence or fraud (because he knew or should have known of the defect in the contract that could render it ineffective) in front of the other party acting in good faith. 

2.4. Rescission

The Civil Code provides for a few cases in which a valid act can be made ineffective because it produces a prejudice that the Code considers to be unfair. The SCC regulates rescission in arts. 1.291 to 1.299 the wording of which is practically the same as that in arts. 1.380 to 1.389 PCC 30.

The main cases of rescission of contracts are stated in article 1.291 SCC. The causes of rescission are numerus clausus; no other case of rescission shall exist apart from the cases foreseen by the law (e.g. article 1.074 SCC rescission of the partition of the inheritance). Furthermore, rescission is a subsidiary remedy; it can only be used if no other legal resort can be used to remedy the prejudice (art. 1.294 SCC; see art. 1.393 PCC).

The contracts that can be subject to rescission are:

1. Contracts celebrated by tutors without judicial authorisation or contracts celebrated in representation of absentees whenever the person represented suffers lesion of more than one-fourth of the value of the things traded (arts. 1.291.1 and 1.291.2 SCC; see art. 1.381 (1) and (2) PCC).

In Spanish Law the only cases of rescission for lesion are those in arts. 1.291.1 and 1.291.2 SCC 31.

1. Contracts undertaken in fraud of creditors (arts. 1.291.3; see art. 1.381 (3) PCC).       

Article 1.297 SCC32 provides that contracts by which the debtor has transferred goods gratuitously or onerous transfers of goods made by persons against whom a condemnatory judgement has been rendered or against whom a writ for the seizure of assets has been issued, shall be presumed to be made in fraud of creditors.   When the debtor has performed acts to harm his creditor’s interests (generally taking out of his patrimony goods that could be used by the creditors to execute their credit), the creditor is provided with the actio pauliana. Such actio confers to the creditor the power to challenge acts that the debtor has undertaken to prejudice his right of credit when the patrimony of the debtor is insufficient to pay such credit, and such patrimony is insufficient because he has fraudulently emptied it not to have to pay his creditors. The creditors have the power to go to Court to undo such fraudulent acts. The effect of such action pauliana is to rescind the fraudulent contract in as much as it is required to pay the credit.

1. Contracts celebrated to trade goods that are subject to litigation without the knowledge and approval of the parties in the litigation or of the judicial authority (art. 1291.4 SCC; see art. 1.381 (4) PCC); and
2. Payments made by an insolvent debtor on account of obligations whose fulfilment the debtor could not be compelled at the time they were effected (art. 1.292 SCC; see art. 1.382 PCC).

The effect of rescission is that it compels the parties to the contract to return the things traded with their fruits and the price paid with interests. Rescission shall not take place when the thing which is the object of the contract is legally and in good faith in the possession of third parties. In this case the obligation to return turns into an obligation from the person who caused the damage to pay a compensation for damages (art. 1.295 SCC; see art. 1.385 PCC).

The action to ask for the rescission of a contract has a term of four years (art. 1.299 SCC; see art. 1.389 PCC); term that cannot be interrupted.  In the case of lesion suffered by persons under guardianship or absentees, the term starts to count from the moment of termination of the incapacity or of knowledge of the domicile of the absentee.  In the rest of the cases it is not specified in the Code but the Spanish courts currently understand that it begins to count when the creditor knows of the fraudulent act 33.

3. Unenforceable contracts
The Civil Code of the Philippines contains one more category of ineffectiveness of contracts which is not established in the Spanish Civil Code.  Articles 1.403 to 1.408 regulate “unenforceable contracts”.  These kinds of contracts are valid contracts but, due to a lack of authority to conclude them, a lack of the form required therein or lack of capacity of both parties, they cannot be enforced in Court.  That is, the contract is valid but the parties cannot ask a Court to enforce them.  However, unenforceable contracts can be ratified (art. 1.403 PCC) and from the moment of ratification shall therefore be enforceable.

Art. 1.403 PCC establishes three kinds of unenforceable contracts.

On the first hand those entered into in the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers.  Under Spanish Law the solution for these cases is different.  In Spain, contracts concluded by a person in the name of another but without power to do so, the so called falsus procurator, are not unenforceable. The consequences of these acts shall be that the contract does not bind the person in the name of whom they were concluded.  However, the person contracting with the third party without the power to do so shall be liable to that third party for the damages that he might have suffered.  Article 1.259 SCC provides that “Nobody can contract in the name of another without being authorised by him or without having his legal representation according to Law.  A contract concluded in the name of another by one who has neither authorisation nor legal representation shall be null, unless it is ratified by the person in whose name it was executed before being revoked by the other contracting party”. The wording of article 1.259 SCC is practically the same as the wording of article 1.317 PCC except for the consequences and for the fact that article 1.317 PCC expressly provides for the possibility of tacit or implied ratification, something not provided in art. 1.259 SCC but that has been accepted by the Spanish Supreme Court (ex. STS July 10, 2002 or June 25, 2004).  The ratification is a declaration of the will (express) of the “principal”, or acts of the principal that show such a will (tacit), by virtue of which he knows and accepts the consequences of the acts of a person who contracted in his name but without authority.

Under Spanish Law if the person in whose name but with no authority the contract was concluded does not ratify it, the contract has not efficacy whatsoever as far as he is concerned.  No matter if article 1.259 SCC speaks of “nullity”, such contract is not really null 34, because the “principal” can ratify it and make the contract affect him.  If the ratification does not take place the person who contracted without power shall be bound to the third party with whom he contracted (unless this latter knew of the inexistence of power) and shall have to compensate him for damages (ex. Art. 1.725 SCC). 
 
On the second hand, art. 1.473.2 PCC establishes a category which is completely unknown to Spanish Law.  Those contracts that do not comply with the Statute of Frauds established in said article shall be unenforceable unless they have a written form35 and are subscribed by the party charged or his agent. The different cases in that Statute of Frauds are:

1. An agreement that by its terms is not to be performed within a year from the making thereof;
2. A special promise to answer for the debt, default, or miscarriage of another;
3. An agreement made in consideration of marriage, other than a mutual promise to marry;
4. An agreement for the sale of goods, chattels or things in action, at a price of no less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action or pay at the time some part of the purchase money.  When the sale is at auction, the detailed entry of the auctioneer in the sales book shall be a sufficient memorandum for these purposes.
5.  An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein;
6. A representation as to the credit of a third person.

As we have said there is not a parallel provision in the Spanish Civil Code to this one.  Our impression is that these provision might have been influenced by the rules of form in the French Civil Code 36 (art. 1.341 FCC and the exceptions in arts. 1.347 and 1.348 FCC) and also by article 1.280 SCC.  Article 1.341 FCC requires written proof for legal acts exceeding of a certain amount.  It is true that the French Code requires that form ad probationem and not as a need for the enforceability of the legal act, but the practical outcome is the same. If they cannot be proved, they cannot be enforced.  In Spain article 1.280 SCC requires certain acts to be executed in a public deed (among them, even in private document, contracts of more than 1.500 pesetas, although this is not applied today).  But the requirement of form in art.1.280 SCC is not a requirement for the validity of the contracts but for other purposes (for example, access to the Registry, efficacy against third parties, etc). It is normally said that in this case the form has the character of form ad probationem, but this does not mean that contracts cannot be proved otherwise (in Spanish law freedom of proof rules). This expression is used in the sense that the form facilitates the proof of the contract and is not necessary for its validity37 . The consequence of not following the form required in article 1.280 SCC is not the inefficacy of the contract but the possibility for any of the parties to ask for that form to be adopted (art. 1.279 CC)38 .

There is however a rule in Spanish Law requiring marital agreements to be concluded in a public deed, but in this case it is a form required for validity and not for enforceability (art. 1.327 SCC).  Notwithstanding that, no requirements of form are set in Spanish Law for suretyship contracts, lease contracts or sale of real property (safe for the necessary form to have access to the Property Registry, but not for validity or enforceability). Also, there are no formalities established in Spain depending on the moment of performance of a contract; the fact that performance of the contract is going to be delayed does not affect its validity or its enforceability under Spanish Law.

Finally, the last kind of unenforceable contracts established in article 1.473.3 are those where both parties are incapable of giving consent to a contract.  Under Spanish Law these contracts would probably be understood to have the same grounds of invalidity as those in which one of the parties lacks sufficient capacity and shall therefore be deemed to be voidable.  

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