Civil Law - Contract, Defects of Consent, Tort and Property
Civil law questions test the general theory of obligations. The examiner typically gives a short sale or service scenario and asks you to classify the defect, choose the remedy, and state the prescription period.
Core rules
- Contract requires consent, capacity, a determinate subject matter, and a lawful cause.
- Defects of consent: essential error (in the substance or the person), fraud (misrepresentation plus intent to deceive), duress, and lesion in limited cases.
- Nullity is absolute and retroactive; voidability is relative, cured by ratification, and subject to a short prescription.
- Non-performance gives specific performance, termination, and damages; damages cover foreseeable loss and require proof; the creditor must mitigate.
- Tort requires fault, damage, and causation; strict liability attaches to things in custody and to employers for employees.
- Unjust enrichment requires enrichment, deprivation, absence of legal cause, and no other available action.
- Possession is protected independently of ownership; acquisition by prescription requires the statutory period and good faith where required.
Worked example
A seller of a used car rolls back the odometer and stays silent when the buyer asks "any accidents?". This is fraud by silence where a duty to disclose exists: the buyer may rescind within the short period and claim damages for the difference in value and consequential loss. Alternatively, the hidden-defect warranty gives rescission or a price reduction, but no damages for the seller's fault. Choose fraud: it allows damages and a different limitation period. Note that damages still need proof of the price difference.
Traps
Mixing nullity with voidability and their periods; claiming damages under the defect warranty; forgetting that silence is fraud only where disclosure is owed; ignoring capacity and cause entirely.