Cancellation of sales contract. Relative invalidity of the vitiation of consent and a finding of sham nature of the same contract

JURISPRUDENȚĂ COMENTATĂ ȘI ADNOTATĂ

Abstract

Nullity is expressly defined as a sanction by Article 1.246 of the Civil Code, "any contract concluded in breach of the conditions required by law for its valid conclusion is subject to nullity, unless another sanction is provided by law".

Relative nullity is a sanction for violation of legal provisions established for the protection of a particular interest, and the annulled contract is deemed never to have been concluded.

Article 1.214 para. (2) of the Civil Code states that the party whose consent has been vitiated by fraud may request the annulment of the contract even if the error was not essential.

Simulation is a legal operation carried out by disguising the real will of the parties, consisting in the simultaneous conclusion and existence of two agreements, one apparent, creating an apparent situation contrary to reality, and the other secret, giving rise to the real situation between the parties, nullifying or modifying the effects apparently produced under the public contract.

The penalty for simulation is the unenforceability against third parties of the situation created by the apparent contract.