Obligations and Contracts
What the domain tests
This domain tests the general theory of obligations and contracts as applied in notarial practice: consent, object, cause, form, nullity, rescission, security clauses, and the main contracts a notary authorizes. The exam expects you to spot when a private agreement cannot be elevated to escritura pública.
Core rules
- A contract requires consent, object, and cause. Consent must be free and informed; error, fraud, violence, or intimidation can vitiate it.
- Real estate contracts require the solemn form of escritura pública for their valid constitution or transfer. A private promise may create personal obligations but does not transfer ownership.
- Nullity may be absolute (illegal object, lack of essential form, incapacity) or relative (vices of consent, lesion). The notary must refuse an absolute nullity.
- Rescission for lesion and other protective remedies must be pleaded and proven; the notary cannot simply ignore a defect because the parties agree.
- Security devices include arras, cláusula penal, condición resolutoria, and mortgage. Each must be drafted precisely and, where required, registered.
- In sale, the notary checks title, price, payment method, delivery, charges, and tax receipts. In donation, the notary checks capacity, acceptance, and the special formalities.
- Lease and usufruct may be authorized notarially, but their registration and duration must be handled according to law.
Worked example
Parties agree on a sale with deferred price and a clause allowing the seller to resolve the sale if payment fails. The notary drafts an escritura with a condición resolutoria, identifies the finca, states the price and payment schedule, and explains that the clause must be registered to affect third parties. The notary refuses to insert a clause allowing the seller to “take back the house without a deed,” because that would bypass the required formal and registry steps.
Traps that cost marks
- Treating a private contract of sale as sufficient to transfer a house.
- Drafting a donation as if it were a sale to avoid formalities.
- Ignoring a vice of consent revealed by the parties’ own statements.
- Forgetting that security clauses may need registry inscription.
- Confusing arras with a penalty or with the price.