Breaches of contract – Part 2
What is non-performance?
Non-performance can be defined as any failure to perform or correctly perform a contractual obligation, whether this failure to perform is due to the fault or lack of fault of one of the parties. In general, non-performance is attributed to the obligor and not to the obligee, so it is necessary to assess the content of the obligation, which will be determined in the contract itself.
What are you entitled to if someone breaches a contract?
You are entitled to have the agreed obligation fulfilled and to the payment of costs and expenses generated by the breach. The contract may stipulate a penalty if the obligation is not performed in the agreed manner. The obligee may demand performance of the obligation or payment of the penalty, but not both, unless the penalty is stipulated for mere delay in performance or because the obligation is not performed in the agreed manner. The damage shall be compensated by restoration of the former situation, if possible, or by payment of damages.
What happens if a person was tricked, beaten, and/or threatened into agreeing to enter into a contract?
When the contract is concluded under threats from one of the contracting parties, or from a third party interested or not in the contract, the contract is null and void.
What happens if a contract is only partially performed?
Full performance of the contract must be demanded, if the obligation is only partially performed, the penalty will be modified in the same proportion.
To which authority should one go to demand the performance of a contract?
The Judiciary has the power to interpret and apply laws, and judges and magistrates have the power to enforce their decisions.
What are the consequences of breach of contract?
In the event of non-performance, one may choose to sue for compulsory performance if this is possible, or for damages. The breach of an obligation, results in damages and compensation for damages. The party in breach of contract is obliged to pay legal costs and expenses.
Actions to enforce a contract
It is possible to demand extrajudicially that one of the parties fulfills its part of the contract, however, the parties can also demand performance by mediation or by means of legal proceedings.
Extra-judicial demand for performance of the contract
This is an amicable claim that allows one of the parties to demand that the other party fulfill the obligation that binds them by virtue of what has been agreed in the contract.
This procedure will depend on the terms established in the original contract, as it may be established that the notice of termination for non-performance may be by registered mail, e-mail, or in writing, which will be carried out with the intention of resolving the differences by the other party, prior to resorting to judicial proceedings.
Presenting a lawsuit demanding the fulfillment of the contract
In the event that the parties have not reached any agreement by any of the means described above, it will be necessary to initiate legal action, which generally begins with the filing of a lawsuit demanding compliance with the contract or the payment of the refund plus the conventional penalty, in accordance with the terms of the contract.