GOAL 4
MASTERING THE ELEMENTS OF CONTRACT
PILLAR #1: VOCABULARY ACQUISITION
New term Short explanation Translation
Offer Formal proposal Oferta
Acceptance Consent on offer Consentimiento
Intention Intend on being binding causa
and formal, creation of
relationship
Consideration Exchange of something orArt. 1254 obligarse: a dar
omission to do somethingalguna cosa o prestar
algún servicio o transferir
un título o un derecho o
renunciar un título o un
derecho
imply to indicate or suggest Implicar o presumir
(something) without its
being stated in words
Detriment harm or damage Detrimento o perjuicio
PILLAR #2: AN APPROACH TO COMPARATIVE LAW
In the Spanish legal system under the art. 1261 of the Civil Code it states that
the contract exists in case the three elements have been concurred: (a) consent of the
parties, (b) the object is not contrary to the laws and habits, (c) a cause of the
obligations which also shall not be contrary to the laws in force and habits.
Under Article 1262, consent is made by the concurrence of the offer and
acceptance regarding the object and the consideration that are to constitute the
contract.
Under Article 1254, the contract exists from the moment one or more persons
consent to be obliged to give something or provide a service to another or others.
Under Article 1258, contracts are concluded by mere consent, and from then
on, they are binding, not only to fulfill what has been expressly agreed but also to all
the consequences that, according to their nature, are in accordance with good faith,
custom, and the law.
Russian civil law is very similar to Spanish law, with some differences: For each
type of contract, the civil or commercial code establishes the essential terms to be
agreed upon by the Parties. In case the contract does not contain all the essential
terms, it can be deemed null and void; that´s why it´s extremely important to have an
In-house counsel, and any company, even the smallest one, tries to have a legal
specialist hired internally.
Also, if one of the Parties is a professional and the other party is a consumer,
then the contract shall be concluded in writing.
If both parties are legal entities or individual entrepreneurs, the contract shall
be concluded in writing.
For import of Goods there is an obligation to have a writing contract in place. In
addition, for the export and/or import contract above the legally established amount,
the party shall declare and register a contract in a Central bank. In case of non-
performance, the administrative fine applies to each contract that has not been subject
to registration.
PILLAR #3: ORAL COMMUNICATION SKILLS
Client: Hello, I'm calling because I had a quarrel with my ex-girlfriend and I
would like to claim an amount of money from her.
Lawyer: I see, but I would need to know further details about the quarrel you
had. What do you want to charge her with??
Client: Well, Rachael and I agreed to go on holiday together for Christmas. I
booked the hotel and the flights, which cost around 850€.
Two days ago Rachael broke up with me because she said is not in love with
him me anymore. Now I want her to pay for her part of the trip.
Lawyer: (1) Have you made an offer in writing and obtained consent from her?
Client: Yes, I do. I have WhatsApp messages that confirm she agreed to go on
holiday with me.
Lawyer: Unfortunately, I am sorry to tell you, but according to the general rules,
in a family or domestic relationship, there is a juris tantum presumption that an
intention is not legally binding. Therefore, no contract formally exists between
you both. If you live with someone, it means a civil partnership, and it can be
registered under the Civil Partnership Act. Therefore, living together with
someone in the same territory for more than 7 days shall be considered a non-
registered civil partnership.
Client: Oh no. I am a complete loser. I have spent all my savings to please my
girlfriend with the trip
Lawyer: Please don´t panic; we still have a possibility to cancel the flight and/or
your hotel booking. In general terms, you shall send me all the confirmations
you have received at your email address. I will have a look at whether we can
cancel the flight or we can update the ticket to someone else´s name you can
take with you. For instance, a familiar or a friend with whom you would like to
spend time with.
Client: Oh no, it seems I have bought a flight without the cancellation option to
save money.
Lawyer: Anyway, we still have the option to write to the airline and to try, at
least, to modify the passenger details issued to the name of your girlfriend to
someone else.
Client: It seems it may be an option. Can you do this for me and what will be the
cost of your service?
Lawyer: I will charge you a lower rate of 1 hour because I will need to check the
airline´s terms and conditions and submit a modification to their helpdesk if the
changes are possible and the charge fee is not too high. Can you please send
me the details as soon as possible on flights and the person who seems to be
going with you on the trip?
Client: Sure, I will ask my colleague and my sister later today; then, once I
have proof, I will send you all the details.
Lawyer: I am sorry for the inconvenience that happened to you, think about
yourself and maybe change the surroundings and not be alone will help you to
heel.
PILLAR #4: WRITTEN COMMUNICATION SKILLS
Dear Max,
Thanks for trusting in our service and instructing me to act on your behalf. I'm
glad we were able to refund the entire amount for the hotel reservation.
However, I need more details about the date you purchased your flights, the
tariff, and any other relevant details. Could you share the purchase confirmation you
have received in your email?
Furthermore, I have reviewed the general terms and conditions available on the
airline´s official website where you have bought tickets and have fortunately found a
clause that may support a refund claim:
“If your Ticket is refundable and you have not used any of it, you can ask for a
refund of the entire amount paid (including any taxes, fees and charges) less an
administration fee of no more than €30.”
In summary, it appears that you have opted for an additional service—a
cancellation option through insurance; a refund is conditioned upon the payment of
the administrative fee, which is no more than €30.
In my opinion, all conditions required to invoke the clause are duly satisfied, and
consequently, we shall initiate a pre-action letter (a letter of claim) to demand a full
refund.
In case of failure to respond or non-refund, we can sue them for contractual
non-performance and claim punitive damages. Therefore, if the litigation is successful,
you will be compensated with the entire amount paid for the flights, punitive damages
awarded, and indemnified for attorney´s representation fees.
Let me know if you agree with the action plan. Please see the estimation of
attorney fees for a pre-action claim.
Please be aware that if we are involved in litigation, we will charge a
contingency fee of 20% of the award.
I look forward to hearing from you on the next step and clarifications about the
actions. I would be most grateful if you could acknowledge the receipt of this
communication at your earliest convenience.
Yours sincerely,
Karina
