Types of contracts in Spain
Tabla de contenidos
Welex, your procedural lawyer in Spain has the pleasure of writing a few lines regarding the typology of existing contracts in the Spanish legal system
A first approach to our system of civil contracting in Common Law makes it imperative to point out the complexity of this matter, not only under the typology of contracts in Spain, but also in attention to the nature, circumstances, purposes, elements and a long etcetera that makes its detailed treatment in these lines impossible.
Thus, for the purposes of explanation, we will deal with the distinction made by the Civil Code of Common Law in Spain, always with the reservations corresponding to the plurality of civil legislations existing in our state, by virtue of article 149.1.8 of our Constitution.
It is Book IV that deals with obligations and contracts in Spain, in which it devotes its first two titles to general provisions on obligations and contracts, regulating from its third title the following:
In each and every one of the structures described, professional and specialised legal and tax advice can be decisive. If you plan to hire or have hired the delivery of goods or services, do not hesitate to contact our law firm in Marbella to assure your obligations and rights regarding the contract you are planning, or if in the execution of the contract there are breaches either by you or by the person with whom you have contracted.
It is Book IV that deals with obligations and contracts in Spain, in which it devotes its first two titles to general provisions on obligations and contracts, regulating from its third title the following
Those relating to the Economic Marriage Regime
Those relating to the Matrimonial Economic Regime, with a distinction being made between those relating to the different existing regimes under Spanish law, i.e.:
The civil law system in Spain consists of a conventional primary system of marital property agreement and a supplementary system applicable in the absence of special agreements or provisions.
If you are planning to discipline the economic matrimonial regime, both before and after the celebration of the marriage, we recommend that you contact our office to assist you in the configuration of these agreements due to their technical complexity.
The subsidiary economic regime of first degree is the «society of community property», our Civil Code enunciating the items corresponding to private property and community property, called to the lifting of the burdens of marriage. This distinction, merely enunciative, is not devoid of litigation, and it is advisable to study it in detail in situations of marital crisis or modification of the economic regime.
In the economic regime of separation of goods each of the spouses participates in the lifting of the burdens of the marriage according to their own resources, belonging to each of them both the property and the administration of the goods that they had at the time of contracting the marriage, as well as those that they acquire later by any title.
Regarding the participation regime, it becomes a mixed system whereby the spouses determine each other’s participation in the lifting of the burdens of marriage, without necessarily being in proportion to the capacity of each of them.
It is very important to have good advice when choosing a marital financial regime as this will remain in force during the marriage or its change. Having professional advice will avoid situations of conflict regarding the assets or income of each of the spouses or, more significantly, regarding the debts and obligations in the exercise of domestic power. Welex has a group of Lawyers, first class professionals, specialised in Matrimonial and Family Law, who will assist you professionally in any scenario that might occur.
Do not hesitate to contact this office in Marbella, Malaga, Spain now! You will have the best professional services of legal, fiscal and accounting nature.
Purchase and sale contracts
By the contract of sale one of the contracting parties undertakes to deliver a thing and the other party undertakes to pay a price in money or a thing representing it. Since this is the standard contract for synallagmatic parties, it presents an almost endless variety depending on the different circumstances of each case and on the operability of the principle of private autonomy in article 1.255 CC. The importance of this contract makes important to have the advice and assistance of legal professionals before signing it.
Such assistance will provide you with the following guarantees:
That the contract meets your expectations and your satisfaction, foreseeing in accordance with our legislation the different possible scenarios, protecting your interests at all times
That when it comes to legal action, you have a useful instrument for the defence of their rights and interests in court.
Welex has experienced lawyers in both scenarios, assisting you effectively both in the pre-trial and trial phases.
For illustration purposes only, we will proceed to set out the essential requirements for the purchase and sale of housing and the granting of a public document as an essential requirement for validity.
The corps of notaries belongs to the Ministry of Justice, whose advisory body is the General Directorate of Registries and Notaries, making its members independent professionals whose primary function is to give public faith to legal acts and business concluded in their presence.
As stated in Article 1280 CC, must be recorded in a public document:
1. ° the acts and contracts that have as their object the creation, transfer, modification or extinction of rights in rem over real estate.
2. ° the leasing of these same goods for six or more years, provided that they must be detrimental to a third party.
3. ° marital property agreements and their modifications.
4. ° the assignment, repudiation and waiver of inheritance rights or those of the marital partnership.
5.º Power to get married, general power for lawsuits and special powers to be presented in court; power to administer property, and any other power that has as its object an act drawn up or to be drawn up in a public deed, or that is intended to harm a third party.
6. º the transfer of shares or rights arising from an act recorded in a public deed.
Other contracts in which the amount of the services provided by one or both contracting parties exceeds 1,500 pesetas (9.02 euros) must also be recorded in writing, even if they are private.
What information must be included in the deed, in the specific case of the sale?
At the top of the deed we will find the following information:
-The place and date of signature of the deed and the name of the notary.
-Identification of the grantors, including name, nationality, marital status, profession, address and identity documents.
-In addition, it will be expressed if a person appears on behalf of another, with an indication of the document authorising it.
-It is also recorded whether an interpreter is involved, in the event that any of the participants does not know the language in which the deed is written.
The notary shall attest to the capacity of the grantors to enter into the relevant transaction. The data relating to the property is then entered, with particular reference to the following:
1. – Description of the property and its registration data in the corresponding property register.
2. – Cadastral reference and situation regarding the payment of the Property Tax.
3. – Statement regarding the payment of the Community of owners and delivery of certification of the state of debts with the community.
4. – Charges and encumbrances on the property.
5. – Delivery of the energy efficiency certification to the buyer.
6. – Incorporation into the deed of a simple informative note from the corresponding property registry.
7. – Possession status: whether the property is free of tenants and occupants or not.
8. – Conditions of the sale and purchase, such as: object, price, form of payment. Payment of deed expenses and payment of Capital Gain Tax.
The deed will mention the fact that the content of the deed has been read, the number of pages it consists of and the signature of the parties, interveners and notary.
At Welex we can provide you with quick and efficient assistance and advice in the granting of public deeds of all kinds, as well as the interpretation of those already signed.
Purchase and sale contracts
Swap Contract
Swap Contract
The defining and distinguishing element of the exchange contract from the preceding one (sales contract) is that one of the services, the payment of the price in money or a sign representing it, is replaced by the delivery of something else. It is enshrined in the quid pro quo aphorism.
This contract is not uncommon in legal transactions, and there should be an equivalence of interest, not prices, between the various services. Changing a large house for a small one; replacing one vehicle for another; or one piece of art for another are typical examples of this type of contract.
However, the apparent simplicity of this type of contract leads to great technical complexity in the tax field.
Essential elements of the exchange contract are:
The transfer of ownership of a good or an object.
Bilateral services, creating obligations for both contracting parties.
This is an onerous contract, with each benefit being evaluated.
The real estate exchange, as a particular case of the contract in question, practiced between 2 individuals, involves the following expenses and taxation:
– Transfer tax for both parties (different from the purchase contract, where only the purchaser is liable for this tax).
– Municipal capital gains tax, again for both parties to the exchange contract.
– Increase or decrease of equity of each of the parties, depending on the value of the exchanged property.
– Special cases in which one of the parties is an entrepreneur and we find ourselves with a change of exchange of land for future construction, but this is another story.
– In cases where one of the parties is not a tax resident in Spain, we will be faced with a 3% withholding from the market price of the exchanged property.
Other expenses are those that require the granting of the public deed of sale and its registration, so it must be understood by the contractors to adjust the cost of the legal business.
To adjust the costs of the operation and to avoid surprises when the public deed is granted or after it, do not hesitate to contact our office of lawyers and economists in Marbella, the nerve centre of the Costa del Sol.
Leasing Contracts
We distinguish between the locatio condution rei, locatio conductio operis and the locatio conduit operis, i.e. rental of things, works or services.
Leases of things are those by which one of the parties gives to another a movable or immovable property for a certain time and price.
A specific type of this type of lease is that of residential and commercial premises, as well as rustic rentals. Both contracts have their own particularities and specific characteristics being therefore regulated by different laws. In other entries of our website you will find detailed information about the characteristics and casuistry of this type of contract.
This type of contract also includes, among many others, the rental of vehicles without a driver or «rent a car», both short and long term.
In short, we can lease anything that is not fungible in the men’s trade.
It is of vital importance that your rental contract is adapted to your needs and that you have the assistance of a technical professional in this area. A correct drafting and configuration of the contract that we are dealing with, can mean an essential difference in case of conflict with your tenant, being able to recover your property in a quick and less traumatic way.
Sometimes it is unavoidable to go to the jurisdiction to terminate the contract. This is where the correct wording of your contract becomes more important.
Contact our Welex lawyers to assist you in the drafting and negotiation of the contract, as well as in the eventual scenario of going to court.
We also find another type of lease in the so-called Construction Lease. We use this contract when we intend to build a house or when we commission a work of art, being significant for this type of contract the obligation of results.
The main characteristic of the construction lease is that the tenant is committed to a specific result. Thus, for example, the deliver will match exactly what our architect designed, with similar qualities, when we order the execution of a work or the construction of a property.
Thus, while in the construction contract the ultimate purpose is the achievement of a result, in the lease of services the lessee undertakes an obligation of means (the assignment to the Lawyer or the Doctor for example). In this type of contract, the professional complies by putting all the means, knowledge and effort to its achievement (lex artis), which will vary according to the type of services and professional hired.
Leasing Contracts
Loan, Pledge and Mortgage Agreements
Loan, Pledge and Mortgage Agreements
Loan
We can find two basic types, namely, the bailment, if what is presented is a non-fungible thing for a certain time, being free or, on the contrary, in the loan of fungible things with the obligation to return another one of the same kind and quality, which can be done for free or with an agreement to pay interest, in which case it is called a simple loan.
For the purposes of illustration, the most relevant data in a loan contract are given below:
Lender: a person who lends.
Borrower: person who receives the loan.
Principal of the loan: amount actually delivered by the lender.
Loan repayment term: time interval in which they are obliged to repay the principal of the loan.
Loan interest: the price for the loan of the principal.
Loan interest rate: configured as the percentage on the principal. This percentage can be freely set by the parties or be based on one of the officially published percentages.
Pledge and Mortgage Contracts
These are contracts that are set up to secure obligations, known as “warranty”. This system of insurance is very common in legal transactions, being used on a daily basis.
These contracts are governed by their own regulations, the purpose of which is to deal with the case where the debtor does not comply with the main obligation. In this way, the creditor has the possibility of going to the liquidation and auction of the insured property to recover his credit.
Bail Bonds
Basically, we are dealing with the case in which a person is obliged to pay or fulfil a certain obligation subscribed by another person in the event that the latter does not fulfil what is incumbent on him/her.
This leads to a multiplicity of variations of this contractual figure.
It is of vital importance, both for the creditor and the debtor, to carry out an economic-legal investigation into the solvency of the guarantor, as well as for the guarantor and creditor themselves to carry out an economic-legal investigation into the solvency of the debtor.
Adequate advice before the formalisation of this type of contract will result in the avoidance of future problems. It is common for this type of contract to influence the relationship of friendship or familiarity with the parties, making it less than thoughtful.
Therefore, receiving specialised advice like the one we provide at Welex, before accepting such obligations can avoid future problems, such as claims, recoveries or lawsuits.
Don’t hesitate to contact our law and economics office in Marbella now!
Bail Bonds
