In the case of breach of the sponsorship contract, the work of Professor Juan VIDAL PORTABALES has served as a reference, who makes a study of how the breach of the contract occurs under the General Spanish Advertising Law.
GENERAL CONSIDERATIONS
In order to draw up the framework in which the rules applicable to the breach of the obligations derived from the sponsorship contract are framed, it seems appropriate to make a brief reference to the general theory of breach of the contract. When the doctrine refers to this issue, it starts from a broad concept of non-compliance, considering it as synonymous with any violation of the legal duty that weighs on the obligor; Along these lines, BELTRÁN DE HEREDIA Y ONÍS believes it appropriate to extend the limits of non-compliance to the maximum in order to include within it the various situations that may occur in the daily life of obligations.
However, this breadth does not prevent that, following the dominant doctrine, we specify the various aspects that are included within the debtor's default, with the aim, where appropriate, of accommodating them to the breach of the sponsorship contract. Thus, following PUIG BRUTAU, the following situations can be distinguished: 1st, one in which the debtor performs a service that does not comply with what the mandatory bond requires; in it, the debtor complies, but complies defectively. This assumption has deserved several denominations; thus, the expression “defective” compliance is sometimes used; on other occasions, there has been talk of "irregular" compliance or "irritual" compliance. In any case,These denominations include cases in which the performance of the debtor –by not exactly adapting to what was agreed- damages the purpose of the provision; 2nd, the situation in which the debtor does not fulfill the provision to which he had definitively bound, using in these cases the term of default stricto sensu; 3rd, and finally, the case in which the debtor does not comply with the provision in due time, although it may do so at a later time if the obligation does not exclude deferred performance, and this without prejudice to the obligation to compensate the resulting damages. of the delay or delay.being used in these cases the term of default stricto sensu; 3rd, and finally, the case in which the debtor does not comply with the provision in due time, although it may do so at a later time if the obligation does not exclude deferred performance, and this without prejudice to the obligation to compensate the resulting damages. of the delay or delay.being used in these cases the term of default stricto sensu; 3rd, and finally, the case in which the debtor does not comply with the provision in due time, although it may do so at a later time if the obligation does not exclude deferred performance, and this without prejudice to the obligation to compensate the resulting damages. of the delay or delay.
These three exposed situations, which the doctrine ordinarily calls defective compliance, definitive non-compliance and delinquent compliance, are included in our positive regulation. Specifically, in art. 1321 CC and the fortuitous event and force majeure, contemplated in art. 1315 of the Cc.
The notion of fraud coincides "with the will of the subject to cause damage", which coincides with art. 1318 Cc regarding the breach of the obligation (referring to the adverb “deliberately”).
The notion of guilt must be understood as "the relationship between harmful behavior and that required by law, in the same specific circumstances, in order to avoid injury to the interests of others." From another perspective, fault is understood as the “creation of an unjustified risk and to assess whether this risk is justified or not, it will be necessary to confront it with the social utility of the activity to which it refers, taking into account the cost of the removal of it: the greater the social utility and the cost of removal, the greater the unjustified risk ”. It must be distinguished: 1st, objective fault, is the fault for violation of the laws. The fault is in re ipsa, that is, the order determines the parameter of behavior and if the agent does not comply with it, he is responsible; 2nd,subjective guilt is one that is based on the “personal characteristics of the agent”. From all this it follows that the core of the concept of fault is constituted by the attitudes of negligence and carelessness of the debtor.
In liability for breach of obligations, various degrees of guilt are usually differentiated, namely: 1st, grave guilt, is the non-use of diligence that is typical of the absolute majority of men, that is, who has had a such conduct has not done what all men commonly do. The art. 1319 CC defines inexcusable fault –which coincides with the concept of grave fault- as “grave negligence”; 2nd, very slight fault, is when the diligence of exceptionally prudent and cautious people is not used. This assumption is not regulated in the Civil Code; however, this degree of guilt has been strongly criticized for its dubious validity "at the level of logic and legal reality"; 3rd, and finally, it has been called,in a happy expression as an "island of typicality" in the sea of atypicality of the civil offense. This means that, in order to hold a person responsible for an omission, there must first be a rule that forces him to act in a certain way.
And finally, in relation to non-compliance due to unforeseeable circumstances and force majeure, arts. 1315 and 1317 Cc. The most recent doctrine considers that the distinction between fortuitous event and force majeure has been overcome. These are notions with the same characteristics, as they must be extraordinary, unpredictable and irresistible events, with the only difference regarding the origin of the event, as noted above, as clearly flows from article 1315 Cc.
From what has been said so far about the causes of non-compliance, it follows that when it depends on the will of the debtor, the debtor is subject to the consequences and the liability derived from the debtor; and when the breach derives from circumstances beyond its control, it does not generate its responsibility for the debtor. This is the result of the confrontation between art. 1321, which imposes the obligation to compensate damages to those who, in the fulfillment of their obligations, incur fraud, inexcusable fault or slight fault, and art. 1317 CC which excludes the debtor from liability when the breach has been caused by unforeseeable circumstances or force majeure.
- NON-COMPLIANCE OF BENEFITS
- The limits of the resolution clauses
Here we must make some clarifications, the breach of a certain duty of provision may give rise to the resolution on the basis of a resolution clause included in the contract, provided that such lack of execution has been determined to exercise the power to extinguish the binding bond that way.
In the sponsorship contract, the cases of total non-compliance or defective compliance that does not guarantee an effective advertising return, provided by the parties to exercise the resolution power, may not be entirely peaceful.
For example, in the case of a television program, the sponsor may agree to reserve the right to resolve the mandatory relationship if the tuning or "rating" has dropped significantly. To avoid doubts about the popularity of the show, the best thing is that both parties designate, jointly, the company that would be in charge of carrying out the survey or poll. But what happens if the sponsorship has been granted to a sports squad, can the resolution be agreed if, for example, it is relegated from a championship and, therefore, "loss of division"? As it is easy to see, the results of the tournament cannot be guaranteed by the team or by the organization. But, despite the fact that the sponsor is not a creditor of the sponsor's usual activity,The latter can commit to carrying out the work that is incumbent on him with the greatest effort, so if it has been agreed that the loss of division will give rise to the sponsor being able to exercise the resolution, it seems that there would be no obstacle for him to terminate the link. The advertising return would not be the same if the squad has lost category, which would be detrimental to the expectations of the sponsor.
If, on the other hand, the sponsorship contract has been concluded with an athlete, can their poor performance or suspension, and even illness, entitle them to resort to resolution?
It should not be forgotten that, in any of the proposed hypotheses, the sponsored has been complying with exhibiting or bearing the name, brand, etc. of the sponsor, so that the advertising return has been, until then, a reality. That is, the athlete has been compliant for a certain time. Regarding this particular example, VEGA tells us that poor performance, suspension or illness (not attributable) do not constitute, per se, grounds for termination, but if their eventual inclusion in the contract as such is discussed, we must confess that is a strange pact for us. Suspensions, moreover, may be due to the vicissitudes of the activity itself, which escape any good intention and any foresight (even if the sponsored person promised to observe respectful and regulatory correct behavior).The assumption of illness seems contrary to any stipulation in this regard. The low performance, in turn, depends on so many factors that it is complex to give a sure answer.
However, the parties are the ones who configure the benefit plan in charge of the sponsored and they are free to stipulate the clauses that they consider appropriate to their interests. However, none of them should be at odds with the elementary principle of good faith.
A possible cause for resolution may be the triggering of a public scandal by the sponsored party. Although no one can rule out that perhaps with this event, the advertising return would be more effective and, therefore, the demand for sponsor products would increase.
- Reparation of damages in case of default
One of the most complex topics of the sponsorship contract arises when the damages caused by the failure of any party must be repaired.
If the sponsor fails to provide financing or goods or clothing to the sponsored, it will be necessary to analyze the significance of the non-execution.
The payment of the emergent damage seems to present no greater difficulty, something that does not necessarily occur in the case of the repair of lost profits.
The determination of the quantum for the failed profit must be based on the effects of default. If it does not affect in a capital way the habitual activity of public scope of the sponsored (which only sought to reduce certain costs, but which can be met directly by him), the compensation can be set on a more affordable guideline. But if the activity itself is frustrated, the problems can be serious.
Indeed, how to determine the profit that was frustrated for the sponsored? Reference or consultation of past experiences can help in some way. If this is not possible, art. 1332 of the Civil Code.
I believe that the same would happen in the event that it is the sponsored person who fails to comply, since although the consequential damage suffered by the sponsor can be determined, the loss of profit is difficult to quantify. This is so because it is not possible to know with certainty what the concrete results would have been in the increase in the demand for goods produced by the sponsor if the "advertising return" had been met.
Given the difficulty in applying safe criteria, it is advisable to include criminal clauses that guarantee the reparation of damages, without ruling out the subsequent damage agreement in the event that the sponsor is able to demonstrate the quantum of the damages that he would have suffered. for the breach of the sponsored.
Well, this classic system around the modes and causes of non-compliance that we have just exposed advises us to follow the pattern set out on the modes of non-compliance, distinguishing, at the appropriate time, between defective compliance, delinquent compliance and definitive non-compliance of the sponsored and of the sponsor.
- DEFECTIVE COMPLIANCE
- Of the sponsored
In the opinion of DÍEZ-PICAZO, the cases of defective compliance can be summarized in the following: the case in which the debtor carries out the acts of compliance and performance of the provision, but it deviates from the lines provided in the business constitutive of the obligation; and the assumption in which the debtor executes the main benefit punctually and exactly, but fails to complete the ancillary benefit essential for the first to produce full effects for the achievement of the pursued purposes. It is also called "special contravention" to refer to the cases in which the obligated parties comply, albeit badly. This expression encompasses all the alleged members of the non-compliance modality other than the definitive one and the default. Thus, specifically, this author refers,on the one hand, to alleged determinants of an “eroding” performance of the benefit, because with this type of performance the favorable effects on the creditor are undermined; on the other, it refers to the alleged determinants of “irregular” compliance, because the debtor's compliance does not follow the channels of the agreed normality; thirdly, it refers to decisive cases of “defective” performance because the debtor's behavior has produced faults or defects for the creditor; and finally, it alludes to assumptions of “irritual” compliance, as there is no adequacy in the debtor's acts with the rite or program outlined when the obligation was established. All these assumptions, then, constitute what is known, with the name of defective performance.to supposed determinants of an "eroding" performance of the benefit, because with this type of performance the favorable effects on the creditor are impaired; on the other, it refers to the alleged determinants of “irregular” compliance, because the debtor's compliance does not follow the channels of the agreed normality; thirdly, it refers to decisive cases of “defective” performance because the debtor's behavior has produced faults or defects for the creditor; and finally, it alludes to assumptions of “irritual” compliance, as there is no adequacy in the debtor's acts with the rite or program outlined when the obligation was established. All these assumptions, then, constitute what is known, with the name of defective performance.to supposed determinants of an "eroding" performance of the benefit, because with this type of performance the favorable effects on the creditor are impaired; on the other, it refers to the alleged determinants of “irregular” compliance, because the debtor's compliance does not follow the channels of the agreed normality; thirdly, it refers to decisive cases of “defective” performance because the debtor's behavior has produced faults or defects for the creditor; and finally, it alludes to assumptions of “irritual” compliance, as there is no adequacy in the debtor's acts with the rite or program outlined when the obligation was established. All these assumptions, then, constitute what is known, with the name of defective performance.because with this type of fulfillment the favorable effects to the creditor are undermined; on the other, it refers to the alleged determinants of “irregular” compliance, because the debtor's compliance does not follow the channels of the agreed normality; thirdly, it refers to decisive cases of “defective” performance because the debtor's behavior has produced faults or defects for the creditor; and finally, it alludes to assumptions of “irritual” compliance, as there is no adequacy in the debtor's acts with the rite or program outlined when the obligation was established. All these assumptions, then, constitute what is known, with the name of defective performance.because with this type of fulfillment the favorable effects to the creditor are undermined; on the other, it refers to the alleged determinants of “irregular” compliance, because the debtor's compliance does not follow the channels of the agreed normality; thirdly, it refers to decisive cases of “defective” performance because the debtor's behavior has produced faults or defects for the creditor; and finally, it alludes to assumptions of “irritual” compliance, as there is no adequacy in the debtor's acts with the rite or program outlined when the obligation was established. All these assumptions, then, constitute what is known, with the name of defective performance.because the compliance of the debtor does not run through the channels of the agreed normality; thirdly, it refers to decisive cases of “defective” performance because the debtor's behavior has produced faults or defects for the creditor; and finally, it alludes to assumptions of “irritual” compliance, as there is no adequacy in the debtor's acts with the rite or program outlined when the obligation was established. All these assumptions, then, constitute what is known, with the name of defective performance.because the compliance of the debtor does not run through the channels of the agreed normality; thirdly, it refers to decisive cases of “defective” performance because the debtor's behavior has produced faults or defects for the creditor; and finally, it alludes to assumptions of “irritual” compliance, as there is no adequacy in the debtor's acts with the rite or program outlined when the obligation was established. All these assumptions, then, constitute what is known, with the name of defective performance.because there is no adequacy in the debtor's acts with the rite or program drawn up when the obligation was constituted. All these assumptions, then, constitute what is known, with the name of defective performance.because there is no adequacy in the debtor's acts with the rite or program drawn up when the obligation was constituted. All these assumptions, then, constitute what is known, with the name of defective performance.
Having set out the general lines of the concept of defective performance, we now deal with the effects that it produces under civil law. It can be said that in the case of synalagmatic obligations, such as those derived from sponsorship contracts, the creditor has the claim to rectify the defective performance, without prejudice to the action to demand compensation for damages and losses if the defects are attributable to the debtor. Furthermore, the functional interdependence of this type of obligation determines that the creditor can exercise what is known as the exception of defective performance, which takes place within the framework of art. 1426 Cc; this exception is called "exceptio non rite adimpleti contractum".The possibility of a readjustment or reduction of the benefit that adjusts the latter to the real value of the faulty performance must also be admitted. And, finally, in certain cases of defective performance, the possibility of claiming the resolution of the obligation is not excluded.
Having explained the general regime applicable to defective performance, we refer below to the specific legislation applicable to the sponsorship contract. Thus, if the sponsored medium, for reasons attributable to him, complied with an order with alteration, defect or impairment of some of the elements, he must execute the advertising again; if repetition is not possible, the advertiser-sponsor may demand a price reduction and compensation for the damages caused.
Considering the applicable legal framework, we must now refer, even briefly, to the reality to which it is addressed. And about this, it should be said that the situations of defective compliance in the sponsorship contract are as varied as those presented by defective compliance with obligations in general. Thus, on many occasions, defective performance derives from the fact that the sponsored person fulfills the main obligation, but not the accessory services. Let's imagine an individual sponsorship in which the sponsored person, in addition to carrying out their activity, must attend certain social events fulfilling this obligation only in some;In this case, a case of partial non-compliance could even be considered since it may happen that in a complex relationship - such as sponsorship - in which several unique benefits coexist and in which some have been executed and others have not been fulfilled, all have, from an economic point of view, the same value.
At other times, however, it is more difficult to detect non-compliance situations. However, the defective compliance by the sponsored person will consist, most of the time, in the performance of the activity to which they are obliged without the expertise or diligence appropriate to the rules of the profession in question; Think, for example, the Argentine Soccer Team that in the last Soccer World Cup in Korea-Japan 2002 was eliminated in the first round (when, according to normal parameters - taken into account by the sponsor when hiring it - the National Team “should” reach the final)
The obligation to develop the activity of the sponsored person is an obligation of means and that, therefore, the sponsored person cannot guarantee the result. But there will be cases in which the sponsored person complies defectively by not reaching the minimum expected of their professional training.
In the sponsorship contract, although a large part of the sponsor's obligations are results, there are also media obligations, such as the obligation to develop the sponsored activity and the obligation to preserve the material delivered.
Let us now look at the requirement of the sponsor's imputability. Indeed, as BELTRÁN DE HEREDIA Y ONÍS points out, non-compliance, and therefore also defective compliance, requires as a structural component the existence of imputability to some subject. However, the defective performance of the service requires that the sponsor has not known the vices or defects of the activity before receiving the benefit; Thus, if the sponsor is aware that the sponsored person is going to carry out his activity in a certain and concrete way that he later intends to challenge, he may not invoke defective performance.
But, without a doubt, the most significant thing is centered on the legal consequences of the defective performance carried out by the sponsored person. As we have seen, the obligation of the sponsored medium to execute the advertising under the agreed terms is established. It is required, in order to apply the legal consequence of the repetition of the obligation, that the defective performance is of "some" of the "elements". Well, in the sponsorship contract it will be very difficult to establish the boundary between the defective performance of any of the elements that generates an obligation to repeat and the defective performance that, by its entity, frustrates the purpose pursued by the sponsor.
For its part, if repetition is not possible, the advertiser-sponsor may demand a price reduction and compensation for damages caused. In many cases there will be no doubt that repetition is not possible; Consider, for example, the sponsorship of activities that must be inexcusably held on a fixed date, hypothesis in which the repetition cannot take place, or else the sponsor is not interested. For these cases, theoretically the sponsor can demand a reduction in the price and compensation for the damages caused. This assumption has a difficult fit in sponsorship, since sponsorship implies “help”, and in which it is difficult to speak of reduction. And, second, because, from a practical point of view, the “help” will be perceived by the sponsored person, as a general rule,before carrying out the activity so that it can take place. For this reason, in any case, one should speak of the obligation of restitution of what is received.
This general principle of readjustment or reduction of the benefit in case of defective performance and in this sense, it should be noted that the problem of defective performance has no easy solution in private law. For this reason, perhaps the reproach that can be made to the defective compliance regime, in its application to the sponsorship contract, derives above all from the fuzzy configuration of this contract in their daily life and from the term “help”, a term that does nothing more than follow, as said, the general criteria that result from common legislation. In this sense, the term "aid" should be replaced by "consideration". In any case,We believe that the possibility of demanding the restitution of the "aid" (when possible) in cases of defective performance by the sponsored party should be kept open in favor of the sponsor.
- From the sponsor
Continuing with the defective compliance attributable to the medium, let's look at the assumption of non-compliance by the sponsor. The obligation to compensate the damages and the obligation to pay the price (the amount of the “aid”) is more in line with the situation of absolute non-compliance than with that of defective performance. Thus, it will be necessary to find a suitable regime for the case, although, first of all, we must examine in which cases we can speak of an inaccurate or defective compliance by the sponsor.
In the first place, it should be noted that the defective performance must be attributable to the sponsor. Thus, if the defective performance is produced by the intervention of another person, the legal consequences of the action of that third person may not be applied to the sponsor. Imagine, in sports sponsorship, that the materials supplied by the sponsor arrive in poor condition to the sponsored team due to the negligence of the carrier. The sponsor may, in this case, exonerate himself of responsibility if he proves that, on his part, he has taken all the necessary measures to avoid the damage.
Obviously, faulty compliance admits of degrees. This makes it convenient to refer, fundamentally, to cases of defective compliance characterized by their lightness. Thus, it is worth wondering what would happen if a sponsor supplies inappropriate equipment for the practice of the activity (for example, if they gave a football team inappropriate boots for it), or appropriate material for the activity in question, but in bad condition; This action of the sponsor, would it suppose its own breach? It seems clear that not, in this case, the foreign doctrine has defended the possibility for the sponsored to claim the appropriate material, restoring the sponsor the inappropriate material. Anyway,it remains a very sensitive matter to determine the consequences of this faulty compliance. Let us remember here the case of a Formula 1 driver who publicly blamed the material supplied by the sponsor for his poor results.
This type of defective performance can frequently occur in the so-called technical sponsorships in which the sponsor agrees to supply technical material to the sponsored. In this case, the sponsor is subject to compensation for damages in accordance with art. 1321 Cc; The sponsor, in these situations, will normally pay the amount that the sponsor is obliged to pay for the repair of the material supplied.
In view of these assumptions, what underlies the situations of defective performance of the latter is the question of whether it is possible to readjust the advertising provision, as established for the case of defective performance by the sponsored. And here, the reduction and readjustment of benefits presents similar difficulties to those seen when examining the defective performance of the sponsored. As the performance of the sponsored person consists of the development of a series of advertising activities, perhaps two cases should be distinguished: on the one hand, that in which the sponsor performs defectively before the advertising performance takes place; in this case we believe that the possibility of a strict readjustment of the provision could be made, while the sponsored party could, in fact, reduce its advertising performance.On the other, the case in which the sponsor's help is provided after the advertising performance takes place; in this case, the readjustment may take place through financial compensation to the sponsored person.
In general, regarding the problem of defective performance, it can be stated that although it is possible, as has been said, that the creditor (be it the sponsored or the sponsor) may urge the debtor to complete the difference in the benefit, the The main issue should normally focus on the financial amount of the compensatory penalty. And on this point, the doctrine understands that it will be made up of two factors: on the one hand, a constant economic factor, equivalent to the quantum that is missing in the defective performance, the proof of the performance of the defective provision being sufficient to prove it; and on the other, of a variable economic factor (properly, the compensation for damages and losses) representing the impairments, damages or losses that the creditor had suffered as a result of the defective performance,being necessary for this claim to prove that they have actually been caused to the creditor of the benefit.
- Assessment
In view of the above, it is insufficient to accommodate the complex reality of sponsorship in the event of defective breach. But it should be noted that supplementary law also offers few solutions to the problem; As stated by DÍEZ-PICAZO, if in general it is difficult to make an enumeration of the assumptions that must be considered under the sphere of the concept of defective performance, it is more difficult to specify the legal consequences of this situation. Civil law is overwhelmed by a diverse reality that forces us to take into account a series of general principles extracted from different precepts; thus, for example, must be taken into account, among others, arts. 1220 (according to which a debt is not understood to have been paid except when it has been fully executed); and, 1221 (according to which,the creditor cannot be compelled to partially receive the provision subject to the obligation).
- MOROSO COMPLIANCE
- Introduction
The default is identified with the culpable delay in the fulfillment of the obligation that does not prevent its subsequent performance; If as a result of the delay the possibility of fulfilling the obligation disappears, it will be a total breach. For the delay to occur, it will be necessary that the delay in compliance is attributable to the debtor and, at the same time, that there is the possibility of compliance with the obligation. To the elements that are unanimously admitted by the doctrine, others are added that are discussed.
The group of undisputed requirements includes the enforceability of the benefit, the liquidity of the debt and the imputation to the debtor of the delay in compliance. It is the unanimously admitted thesis that there is no default if the obligation is unenforceable because the expiration period has not arrived, or because of its nature (think of natural obligations), or because it is subject to a condition. Neither is there when the debt is illiquid (“in illiquidis mora non fit”); finally, the guilt of the debtor in the delay is a requirement of the default. As regards the proof of the absence of fault, by virtue of the presumption of guilt in art. 1329 of the Cc, the same will be borne by the debtor, that is, the creditor will only have to prove the existence of the credit, and where appropriate, the requirement; the debtor,to be exempt from liability, you must show that the delay is not attributable to you.
Among the discussed requirements of default are the need for the positive nature of the obligation and the appeal of the creditor, expressly required in art. 1333 Cc.
For the debtor's default, it is necessary to connect the default with the idea of time in which the benefit has to be fulfilled. Default and delay are concepts that do not coincide automatically and that is why it has been said that default is a qualified delay.
Among the requirements for the establishment in default of the debtor we have: (i) Obligation to give or do; However, it is possible to think that when a non-facere must start from a certain moment there is a default if the expected behavior has not been initiated, and non-compliance if once initiated it is violated; (ii) Intimation of the creditor, this declaration of will is not subject to a specific form. The declaration of will of the creditor must be directed precisely to the debtor or his legitimate representative, it is, in short, receptive, producing its effects from the moment it becomes known to them. It must be issued after expiration. It is not required in the cases of art. 1333; (iii) Enforceability of the obligation; (iv) Non-compliance must be voluntary; and, (v) It must be liquid or liquidable. In any case,Whatever the type of obligation, the default does not eliminate the obligation to fulfill.
An important effect of the blackberry is the so-called perpetuatio obligationis. The debtor is even liable for the non-imputable cause that produces the supervening impossibility, unless he proves that the non-imputable cause would have affected the benefit, even if it had been timely fulfilled (art. 1336 Cc).
The effects of the default may disappear due to its purge, which occurs when the creditor renounces to use the rights that the default has granted him. A different assumption is that of the cessation of the state of default, because in it the effects of said cessation occur from the moment it occurs. Causes of cessation are: a) the performance or termination of the obligation for any reason: b) The extension given by the creditor for the debtor to comply; c) The creditor's delay, also called “credendi” delay, constitutes an omission by the creditor of the precise behavior for the delivery result to be produced in the obligation to give, when this behavior is necessary.
But it is art. 1335 of the Civil Code, which offers, without a doubt, the greatest interest for the sponsorship contract. It establishes, for reciprocal obligations, such as those arising from the sponsorship contract, the rule that in them none of the obligated parties is in default unless one of the obligated parties fulfills his obligation or grants guarantees that he will fulfill it; the default for the other begins, assumption from which it follows that in reciprocal obligations the default is automatic.
The obligations arising from this contract are better accommodated to the principle that dispenses with the requirement for the production of default. And as regards the issue of guilt in the defaulter, it seems to us, with the majority doctrine, the traditional criterion of guilt in the default in view of the network of relationships that usually accompany it.
- Delinquent compliance of the sponsor
It seems appropriate to distinguish the cases in which the sponsor's benefit is specified in cash deliveries, from those other, very frequent, in which the sponsor's obligation materializes in deliveries of a specific thing.
As regards the first assumption, cash aid, the general effect produced by the default is determined by art. 1336 Cc. In accordance with this article, once the sponsor's obligation has been fulfilled, the defaulting sponsor, in accordance with the terms of art. 1336 is subject to compensation for damages. Also of special importance in this matter is art. 1324 Cc, which provides that if the obligation consists of the payment of an amount of money, there is no agreement to the contrary, the compensation for the damages will consist of the payment of the agreed interest, and in the absence of an agreement, in the payment of legal interest. In relation to the sponsorship contract, it is worth asking whether the expression "aid" is consistent with the idea of interest payment in the case of delinquent compliance by the sponsor.It is clear that if a cause close to lucrative businesses is attributed to the sponsorship contract, the idea of interest payment must be rejected. However, the obstacle disappears if one starts from the consideration of the sponsorship contract as an onerous contract, as it is argued in this study. In short, the payment of interest is a consequence of the delinquent fulfillment of the sponsorship contract, conceptualized as an onerous and commutative contract.The payment of interest is a consequence of the delinquent fulfillment of the sponsorship contract, conceptualized as an onerous and commutative contract.The payment of interest is a consequence of the delinquent fulfillment of the sponsorship contract, conceptualized as an onerous and commutative contract.
In the case of aid provided by the sponsor consisting of the delivery of certain things (as happens in the cases in which to make the sponsorship contract possible, the sponsor delivers essential technical material for the development of the agreed activity to the sponsored person), the The effects of delinquent compliance with the sponsor are specified in what is known, from Roman law, with the name of perpetuatio obligationis, that is, the assumption of risks from the constitution in default. This is inferred from arts. 1138.1, 1138.2, 1138.5, 1138.6 and 1139 of the Civil Code, that is, the defaulting sponsor will be liable for the loss of the thing. The reciprocal nature of the obligations arising from the sponsorship contract must be taken into account here,which means that sponsor and sponsor have the double consideration of debtor and creditor.
However, notwithstanding the foregoing, it should be noted that in practice, the complex relationships that arise from the sponsorship contract determine that the situations of possible delinquent compliance of the sponsor are resolved, either in a definitive compliance, or in the so-called purgatio morae. In effect, either the sponsor has no intention of complying with the agreement, or the sponsor agrees, for the sake of their interest, to accept what is offered by consenting to receive the aid at a later time than the one initially established. In this sense, with respect to the border between default and final default, it has been written that default and default have the same origin and that the decisive criterion to avoid confusion between default and default will be the possibility or impossibility of the provision after a Certain moment,so that if this is impossible, we will be facing a case of default. However, determining the impossibility of the benefit is an arduous task since it is worth asking whether this impossibility must be objective or subjective, that is, derived in the latter case from the fact that the delayed benefit is not useful to the creditor. The solution is not simple, since the primacy of the objectivist vision strengthens the principle of security to the detriment of justice, while an objectively possible subjectivist provision may endanger the principle of security, since compliance with the obligation will depend on reasons and individual conveniences.Determining the impossibility of the benefit is an arduous task since it is worth asking whether this impossibility must be objective or subjective, that is, derived in the latter case from the fact that the delayed benefit is not useful to the creditor. The solution is not simple, since the primacy of the objectivist vision strengthens the principle of security to the detriment of justice, while an objectively possible subjectivist provision may endanger the principle of security, since compliance with the obligation will depend on reasons and individual conveniences.Determining the impossibility of the benefit is an arduous task since it is worth asking whether this impossibility must be objective or subjective, that is, derived in the latter case from the fact that the delayed benefit is not useful to the creditor. The solution is not simple, since the primacy of the objectivist vision strengthens the principle of security to the detriment of justice, while an objectively possible subjectivist provision may endanger the principle of security, since compliance with the obligation will depend on reasons and individual conveniences.whereas an objectively possible subjectivist provision may jeopardize the principle of security, since the fulfillment of the obligation will depend on individual motives and convenience.whereas an objectively possible subjectivist provision may jeopardize the principle of security, since the fulfillment of the obligation will depend on individual motives and convenience.
In relation to the purgatio morae or cessation of it, this is understood as the end of the offending situation in which the debtor-sponsor finds himself, either because the obligation has been extinguished, or because a new term has been granted for compliance. In sponsorship contracts, many delinquent compliance situations can be resolved by virtue of the novation of the contract; The sponsored person depends economically on the sponsor to continue in the exercise of their activity - think about the sponsorship of Sports Clubs, which usually have the same sponsor for several years - will prefer to follow the path of a new contract rather than a claim of dubious result. Indeed,In the same way that the sponsor will think a lot about the possibility of suing the sponsor in the event of non-compliance with it, due to the possible consequences of negative publicity, the sponsor will also weigh the convenience of a claim against his delinquent sponsor, since with it closes the way to possible financial aid in the future.
- Delinquent compliance of the sponsored
Regarding the delinquent compliance of the sponsored, except in the case of force majeure, it is appropriate; refer, first, to the assumption of cooperation in the delay by the sponsor, and to the assumption of novation. From a practical point of view, it is possible that the sponsored debtor does not fulfill his obligation because the creditor of the benefit (the sponsor) refuses to collaborate in the provision (for example, not delivering on the day of the event the advertising that the sponsored person should wear). In this type of situation in which there is an objective delay in the provision as a result of behavior due to a cause attributable to the creditor, we are faced with the assumption of mora credendi, the consequence of which, according to the general rules, is the exclusion of the responsibility of the sponsored.
On the other hand, it should be noted that, as we saw when analyzing the sponsor's delinquent compliance, the sponsor's delinquent compliance situations will be resolved, on occasions, with the novation of the obligation. Indeed, if the sponsor does not comply with the provisions, in most of the situations in which delayed compliance is convenient for the sponsor, the delay situation will lead to a new agreement that will purge the effects of the default, since it is not conceived that the sponsor who intends to “help” claims compensation for damages.
- BIBLIOGRAPHY
ALPA, Guido. Il problem della atipicià dell´illecito. Napoli, Jovene, 1979. 268 p.
BELTRÁN DE HEREDIA AND ONÍS, Pablo. Failure to comply with obligations. Madrid, EDERSA, 1990. 137 p.
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BIANCA, Mirzia. I contratti di sponsorizzazione. Rimini, Maggioli, 1990. 362 p.
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CORREDOIRA AND ALFONSO, Loreto. Sponsorship: its legal regime in Spain and in the EEC Barcelona, Bosch, 1991. 414 p.
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GILLIES, Caroline. Business sponsorship. Oxford, Butterworth-Heinemann, 1991. 211 p.
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GRAMUNT FOMBUENA, María D. The default of the debtor in the Civil Code. Barcelona, Bosch, 1993. 231 p.
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OSTERLING PARODI, Felipe. Obligations. 4th ed., Lima, Pontificia Universidad Católica del Perú Editorial Fund, 1992, Vol. VI. 231 p.
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SALVI, Cesare. La Reponsabilità civile. Milano, Guiffrè, 1998. 272 p.
SÁNCHEZ CALERO, Fernando. Commercial Law Institutions. 20th ed., Madrid, McGraw-Hill, 1997, T.II. 560 p.
TRIMARCHI, Pietro. Rischio e responsabilità oggetiva. Milano, Guiffrè, 1961. 385 p.
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VEGA MERE, Yuri. Sponsorship or sponsorship contract. In his Private Law, Lima, Grijley, 1996. TI, pp. 249-268.
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CV
Dr. José Luis SILVA CUEVA
Lawyer, “summa cum laude” and Ms. Civil Business Law from the Antenor Orrego Private University of Trujillo, Peru. International Diploma in Contract Law (UIGV). Writer and contributor to different specialized magazines in Peru and abroad. Associated with the Latin American Private Law Forum.
Email: [email protected]
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DEFECTIVE AND DELAYED COMPLIANCE WITH THE SPONSORIZATION CONTRACT
Contributed by: Dr José Silva Cueva - [email protected]
For DÍEZ-PICAZO, Luis. Patrimonial civil law foundations. Mandatory relationships. 2nd ed., Madrid, Civitas, 1996, Vol. II, p. 567, the phenomenon of non-compliance can be viewed from the perspective of the legal duty that weighs on the debtor, or from the perspective of the right or interest of the creditor. From the first point of view, it is necessary to ask to what extent the debtor has observed or infringed his legal duty; From the other point of view, it will be necessary to find out to what extent the creditor has received satisfaction or has violated his right or interest.
BELTRÁN DE HEREDIA AND ONÍS, Pablo. Failure to comply with obligations. Madrid, EDERSA, 1990, p. 18.
PUIG BRUTAU, José. Fundamentals of civil law. General law of obligations. 4th ed. rev. and updated, Barcelona, Bosch, 1976, T.1 Vol. 2, p. 484.
DÍEZ-PICAZO. op. cit., p. 666.
GONZÁLEZ GONZÁLEZ, Aurora. The resolution as the effect of non-compliance with bilateral obligations. Barcelona, Bosch, 1987, p. 44.
DÍEZ-PICAZO (op. Cit., Pp. 569 ff.) Highlights how the traditional doctrine admitted two forms of infringement of the rights derived from a mandatory relationship: default and definitive breach. And it shows how modern doctrine indicates that such hypotheses do not include all possible contractual injuries; in particular, situations in which the debtor performs a service that does not fully comply with the service program or project established in the act of constitution of the mandatory relationship, and which can be called “defective performance” cases. For his part, CASTÁN TOBEÑAS, José. Common and provincial Spanish civil law. Right of obligations. The obligation and the contract in general. 16th ed. rev. and updated by Gabriel García Cantero, Madrid, Reus, 1992, T. III, p. 236,Regarding non-compliance, it distinguishes between own or absolute non-compliance and improper or relative non-compliance; the most prominent assumption of the latter is the default in relation to time, which determines the concept of default.
For comments on arts. 1321, 1315 and 1318, Cf. OSTERLING. op. cit., pp. 207-209; 198-202; And p. 205, respectively.
CIVIL CODE. Article 1321.- Anyone who does not perform their obligations due to fraud, inexcusable fault or slight fault is subject to compensation for damages.
The compensation for the non-performance of the obligation or for its partial, late or defective fulfillment, includes both the consequential damage and the loss of profit, insofar as they are an immediate and direct consequence of such non-performance.
If the non-performance or partial, late or defective fulfillment of the obligation is due to slight fault, the compensation is limited to the damage that could be foreseen at the time it was contracted.
CIVIL CODE. Article 1315.- Fortuitous event or force majeure is the non-imputable cause, consisting of an extraordinary, unforeseeable and irresistible event, which prevents the execution of the obligation or determines its partial, late or defective fulfillment.
SCOGNAMIGLIO, Renato. Voice “Reponsabilità civile” New Italian Digest. Torino, UTET, 1968, XV, p. 640 cit. p. ESPINOZA ESPINOZA, Juan. Civil Liability Law. Lima, Gaceta Jurídica, 2002, p. 95. Intent is usually defined as the action or omission that, with the conscience and will to produce an unlawful result, prevents the normal fulfillment of an obligation (CASTÁN. Op. Cit., P. 253).
CIVIL CODE. Article 1318.- Whoever deliberately does not execute the obligation proceeds with fraud.
SALVI, Cesare. La Reponsabilità civile. Milano, Guiffrè, 1998, p. 110.
TRIMARCHI, Pietro. Rischio e responsabilità oggetiva. Milano, Guiffrè, 1961, p. 99.
Also called guilt in the abstract. An example is constituted by art. 961 Cc.
SALVI. op. cit., p. 111. Also called culpa in concret. An example is the art. 1314 Cc that refers to the ordinary diligence required. This type of guilt encompasses recklessness (the subject does more than he should) and negligence (the subject does less than he should).
CRISTÓBAL MONTES, Ángel. Failure to comply with obligations. Madrid, Tecnos, 1989, p. 100.
Diligence is defined as the proper use of the energies and the useful means for the realization of a determined purpose (BIANCA, Massimo C. Negligence in Italian civil law. In: LEÓN, Leysser L. Studies on Civil Liability. Lima, ARA Editores, 2001, p. 346.)
CIVIL CODE. Article 1319.- Incurs inexcusable guilt who by gross negligence does not execute the obligation.
For comments on arts. 1319 and 1317, Cf. OSTERLING. op. cit., pp. 205 and 204, respectively.
SCOGNAMIGLIO. op. cit., p. 642 cit. p. ESPINOZA ESPINOZA. op. cit., p. 91.
ALPA, Guido. Il problem della atipicià dell´illecito. Napoli, Jovene, 1979, p. 246.
CIVIL CODE. Article 1317.- The debtor is not liable for the damages resulting from the non-performance of the obligation, or from its partial, late or defective fulfillment, for causes not attributable, unless otherwise expressly provided by law or by title of the obligation.
He considers the fortuitous event as a mere terminological variation (COTTINO, Gastone. L´impossibilità sprevvenuta della prestazione e la responsabilità del debitore: problemi generali. Milano, Guiffrè, 1955, p. 218).
VEGA MERE, Yuri. Sponsorship or sponsorship contract. In his Private Law, Lima, Grijley, 1996, TI, p. 266.
For comments on art. 1332, Cf. OSTERLING. op. cit., pp. 216-218.
CIVIL CODE. Article 1317.-
DÍEZ-PICAZO. op. cit., p. 670.
For this same author (Ibid, p. 66), the most important difference between defective compliance with definitive non-compliance and default is that in the latter cases there is a total omission of provision, while in the case of defective compliance there is a positive behavior of the debtor aimed at complying, although this does not comply with the terms of the project established in the act of constitution of the mandatory relationship; in the latter case, then, the debtor complies, but complies badly.
This is what is known as specific compliance. Cf. LACRUZ BERDEJO, José Luis. Elements of Civil Law. Right of Obligations. Contracts and Quasi-contracts. 2nd ed., Barcelona, Bosch, 1986, T.II. Vol. 2, pp. 171 sqq.; CASTÁN. op. cit., pp. 266 sqq.
CIVIL CODE. Article 1426.- In contracts, they are reciprocal benefits in which they must be fulfilled simultaneously, each party has the right to suspend the fulfillment of the provision at their expense, until the consideration is satisfied or its fulfillment is guaranteed.
On this matter, Cf. DÍEZ-PICAZO. op. cit., pp. 693, and DE LA PUENTE Y LAVALLE, Manuel. The contract in general. Comments on the First Section of Book VII of the Civil Code. Second Part (articles 1414 to 1528). 2nd ed., Lima, Editorial Fund of the Pontifical Catholic University of Peru, 1996, T. IV, pp. 247-259 and for the comment of art. 1426 (ibid., Pp. 221-274).
On this point, GONZÁLEZ GONZÁLEZ (op. Cit., P. 80) has indicated that, from a theoretical point of view, it is possible to delimit the cases of partial compliance and defective compliance. Thus, while in the first there is a portion of the mandatory relationship that has been well complied with, in the second –defective performance- this provision is fulfilled in its entirety, but in such a way that such performance contravenes the interest of the creditor by carrying an inaccuracy in the quality wanted by it. In any case, it should be noted that both forms of compliance, the partial and the defective, fall within the category that some call irregular compliance, being, therefore, very close. Indeed, it can be stated that whoever complies defectively complies, but not totally, but partially.
BELTRÁN DE HEREDIA AND ONÍS. op. cit., p. 28.
CORREDOIRA AND ALFONSO, Loreto. Sponsorship: its legal regime in Spain and in the EEC. Barcelona, Bosch, 1991, p. 183, considers that there is no reduction in the aid in the advertising sponsorship contract.
DÍEZ-PICAZO, Luis. The sponsorship contract. Yearbook of Civil Law, IV (47), 1994, p. 9, considers the term "aid" imprecise, understanding that it would have been more technical to speak purely and simply of asset attribution.
Cf. BIANCA, Mirzia. I contratti di sponsorizzazione. Rimini, Maggioli, 1990, p. 186.
It should be noted that in Italian doctrine, BIANCA (op. Cit., P. 186) understands that the benefits arising from the sponsorizzazione are not reducible.
DÍEZ-PICAZO. Fundamentals…, cit., II, p. 666.
For comments on arts. 1220 and 1221, Cf. OSTERLING PARODI, Felipe and CASTILLO FREYRE, Mario. Treaty of Obligations. Lima, Editorial Fund of the Pontifical Catholic University of Peru, 1994, Vol. XVI, T. IV, pp. 119-226 and 227-242, respectively.
RUIZ VADILLO, Enrique. Civil law: introduction to the theoretical-practical study. 17th ed., Logroño, Ochoa, 1991, p. 321; BELTRÁN DE HEREDIA AND ONÍS. op. cit., p. 81.
FERRERO COSTA, Raúl. Course on the Law of Obligations. 2nd ed., Lima, Cultural Cuzco, 1988, p. 281.
CASTÁN. op. cit., p. 238.
CIVIL CODE. Article 1329.- It is presumed that the non-performance of the obligation, or its partial, late or defective fulfillment, is due to the slight fault of the debtor.
CIVIL CODE. Article 1333.- The obligee is in default since the creditor demands, judicially or extrajudicially, the fulfillment of his obligation.
Notification is not necessary for the default to exist:
1.- When the law or the pact expressly declare it.
2.- When the nature and circumstances of the obligation show that the designation of the time in which the good was to be delivered, or the service performed, would have been a determining reason for contracting it.
3.- When the debtor expresses in writing his refusal to fulfill the obligation.
4.- When the summons is not possible for reasons attributable to the debtor.
CIVIL CODE. Article 1336.- The debtor established in default is liable for the damages incurred by the delay in the fulfillment of the obligation and by the supervening impossibility, even when it obeys because it is not attributable to it. You can escape this responsibility by proving that you have incurred a delay without fault, or that the non-attributable cause would have affected the benefit; although it had been fulfilled in a timely manner.
CIVIL CODE. Article 1335.- In reciprocal obligations, none of the obligated parties is in default unless one of them fulfills their obligation, or grants guarantees that they will fulfill it.
Cf. SÁNCHEZ CALERO, Fernando. Commercial Law Institutions. 20th ed., Madrid, McGraw-Hill, 1997, T.II, p. 123; and URÍA GONZÁLEZ, Rodrigo. Commercial Law. 24th ed., Madrid, Marcial Pons, 1997, p. 645.
Cf. OSTERLING. op. cit. For arts. 1329 (pp. 215-216); 1333 (pp. 219-220); 1336 (pp. 221-222); 1335 (p. 221) and 1324 (pp. 210-212).
CIVIL CODE. Article 1324.- The obligations to give sums of money accrue the legal interest set by the Central Reserve Bank of Peru, from the day the debtor is in default, without the need for the creditor to prove that they have suffered any damage. If higher interests were owed before the default, they will continue to accrue after the day of default, with the quality of default interest.
If compensation for subsequent damage had been stipulated, it corresponds to the creditor who proves to have suffered the respective compensation.
Let us remember that this proximity to lucrative businesses is defended by CORREDOIRA Y ALFONSO (op. Cit., P. 184). For said author, the sponsorship contract is classified as lucrative or mixed.
In our opinion, the sponsorship contract is an onerous contract, because the sponsor and sponsored obtain reciprocal advantages; and, furthermore, it is commutative since in it the change of benefits can be indicated in a fixed and invariable way at the moment of perfection of the contract.
BELTRÁN DE HEREDIA AND ONÍS. op. cit., p. 97.
CIVIL CODE. Article 1138.- In the obligations to give certain goods, the following rules are observed, until their delivery:
1.- If the asset is lost through the fault of the debtor, its obligation is resolved; but the creditor ceases to be bound by the consideration, if any, and the debtor is subject to the payment of the corresponding compensation.
If as a result of the loss, the debtor obtains compensation or acquires a right against a third party in substitution of the due provision, the creditor may demand the delivery of such compensation or replace the debtor in the ownership of the right against the third party. In these cases, the compensation for damages is reduced by the corresponding amounts.
2.- If the property deteriorates due to the debtor's fault, the creditor may choose to resolve the obligation, or to receive the property in the state in which it is found and demand the reduction of the consideration, if any, and the payment of the corresponding compensation for damages, being applicable, in this case, the provisions of the second paragraph of subsection 1. If the impairment is minor, the creditor may demand a reduction of the consideration, if applicable.
3.- If the asset is lost due to the creditor's fault, the debtor's obligation is resolved, but the debtor retains the right to the consideration, if any. If the debtor obtains any benefit with the resolution of his obligation, its value reduces the consideration paid by the creditor.
4.- If the asset deteriorates due to the creditor's fault, the creditor has the obligation to receive it in the state in which it is found, without any reduction in the consideration, if any.
5.- If the property is lost through no fault of the parties, the obligation of the debtor is resolved, with loss of the right to compensation, if any. In this case, the debtor is entitled to the rights and actions that would have remained relative to the asset.
6.- If the asset deteriorates through no fault of the parties, the debtor suffers the consequences of the deterioration, making a proportional reduction of the consideration. In this case, the debtor is entitled to the rights and actions that may cause the deterioration of the asset.
CIVIL CODE. Article 1139.- It is presumed that the loss or deterioration of the property in possession of the debtor is his fault, unless proven otherwise.
For comments on arts. 1138 and 1139, Cf. OSTERLING and CASTILLO. op. cit., II, pp. 27-65 and 67-69, respectively.
On the morae purgatio, Cf. GRAMUNT FOMBUENA, María D. The mora of the debtor in the Civil Code. Barcelona, Bosch, 1993, pp. 155 sqq.
CANO MARTÍNEZ DE VELASCO, José I. La mora. Madrid, EDERSA, 1978, p. 43.
On the matter, Cf. CRISTÓBAL MONTES. op. cit., pp. 129 ss.
CANO MARTÍNEZ DE VELASCO. op. cit., pp. 43 and 44.
GRAMUNT FOMBUENA. op. cit., p. 155.
As GILLIES points out, Caroline. Business sponsorship. Oxford, Butterworth-Heinemann, 1991, p. 115, it takes three to five years for certain sponsorships to reveal their effectiveness from a business perspective.
Following MONTÉS PENADÉS, Vicente L. The Responsibility for Breach. In: VALPUESTA FERNÁNDEZ, Ma. R. (coord.). Law of obligations and contracts. 2nd ed., Valencia, Tirant lo blanch, 1995, p. 211, the assumptions of this situation are, on the one hand, the existence of an enforceable and expired obligation, and, on the other, the lack of cooperation of the creditor. The consequences of the creditor's delay will be specified in the compensation, where appropriate, of the delay in which the debtor was found; in the modification of the normal risk system due to fortuitous loss or impossibility; in the possibility of consignment of the thing by the debtor; and in the case of mandatory synalagmatic relationships, the resolution would be appropriate.
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