The reform of contract, obligations, and evidence law has now entered into force.
It must be understood and integrated quickly, as it has established new principles and rules applicable to contracts concluded since October 1, 2016, and, in principle, to contracts renewed or tacitly extended from that date.
Major changes have indeed been introduced:
- The establishment of the obligation to act in good faith at all stages of the life of the contract, as well as its public policy nature;
- The introduction of the classification of adhesion contracts, the rules of which prohibit unfair terms;
- A broadening of the concept of violence to now include the abuse of a state of dependency;
- The general prohibition of clauses that deprive the debtor's essential obligation of its substance;
- The possibility of invoking the lapse of a contract due to the disappearance of another contract concluded by one of the parties, due to their interdependence;
- The creation of a mechanism designed to ultimately allow a party faced with the occurrence of unforeseen circumstances at the time of the conclusion of the contract, making its execution excessively onerous, to obtain judicial revision or annulment;
- The legal definition of the concepts of extension, renewal and tacit renewal in terms of contract duration, as well as their regime;
- The ability for a party to invoke the exception of non-performance in futurum;
- The creation of a new sanction for non-performance of contract, namely price reduction;
- The recognition of the right for a party to unilaterally invoke the termination of the contract, outside the application of any termination clause.
More technical subjects have also given rise to new rules or mechanisms, such as:
- The introduction of interrogation actions;
- The broadening of the scope of exceptions to the principle that silence does not constitute acceptance;
- The treatment of the quality of service in the contract;
- The creation of a unified system for the assignment of contracts or receivables;
- The option available to the parties regarding the unilateral fixing of prices in framework contracts or service contracts and its limitations.
Some of the new provisions of the Civil Code may also pose implementation difficulties, such as:
- In terms of representation, with the adoption of a rule strictly regulating the conditions of representation of both parties to a contract by the same person;
- Regarding the treatment of the termination of the contract, due to the supposed maintenance of the effects of certain clauses such as non-competition or confidentiality clauses.
It is more important than ever to focus on revising the contractual models used and to review the contractualization processes, taking into account that the reform carried out carries a spirit which judges will a priori be called upon to ensure respect for, which emphasizes the need for the parties to have a relationship based on a balance of their rights and obligations.
