Nuevos planteamientos e hipótesis en torno a la resolución por incumplimiento del contrato

Abstract

This paper analyzes the jurisprudence in several legal systems, with special emphasis on Spanish, around the nature of the resolution for breach of contract, as well as the consequences that derive from it. Throughout the investigation, therefore, it is intended to provide interpretative solutions to art. 1124 of the Civil Code (hereinafter CC) and of course, with the support of the provisions of the soft law texts, considering the approach admitted by Spanish jurisprudence when it recognizes that Spanish law can be interpreted in the light of European contractual soft law. In this way, it could facilitate and even increase the activity of companies and consumer confidence, when they sign sales contracts both in their countries of origin and in other European countries, and more specifically paying special attention to small and medium-sized enterprises (hereinafter SME that are those that are especially affected by issues not resolved by the doctrine as in all those cases of exercise unilateral and, presumably opportunistic, of the resolutory power. From this perspective, an attempt will be made to analyze the broad blocks of issues raised by the resolution, on the one hand, the essential breach, the objective or subjective nature of the resolutory breach (i.e. whether fault is required or not to terminate the contract), on the other hand, the relationship between the resolution and compensation for damages, unilateral resolution, the early termination (that is, before the other party has breached, when it is clear that it will not be able to comply), and finally, as well as the consequences of the resolution.