Although Mexican commercial law does not specifically define the concepts of “commercial contract” or “commercial obligation,” the essential elements for their formation are found in civil law. According to the Federal Civil Code, these elements are the consent of the parties and the object of the contract. Additionally, in certain cases, solemn formalities must be followed. If any of these elements are missing, the contract will be considered nonexistent and its fulfillment cannot be demanded.
What are the causes that invalidate a contract? It can be due to the lack of capacity of the parties, the presence of defects in the consent, the non-existence of a valid object, or the lack of formalities required
The first essential element for the formation of a contract is the consent of the parties, which is perfected with the presentation of the offer and acceptance. If the acceptance implies a change in the original terms of the offer, a new offer will be established that must be accepted with respect to those new terms for the contract to be valid.
Acceptance can be expressed or implied. The consent must be valid, that is, without defects. A contract will only be formed through the valid consent of the parties, which means that the consent will become ineffective if it is affected by any of the legally recognized defects of consent, such as error, fraud, coercion, or a lopsided contract.
Regarding the second essential element, the object of the contract must always be valid, which means that the rights and obligations in it, as well as the goods or services subject to it, must be legal, possible, and tradable.
Contracts can be verbal or written, but certain types of contracts must be elevated to a public deed, that is, generally celebrated before a notary public, for example, when their value or consideration exceeds a certain amount. Some of them include the acquisition and transfer of rights to real estate, donations or settlements, notarial powers of attorney, and the incorporation of companies.
Certain contracts, due to the amount of their consideration, must be executed before a notary public and then formally presented to the corresponding public registries. In Mexico, the notary public is a licensed lawyer who is designated and has public faith, that is, they can officially attest to the truthfulness of the facts that occur in their presence or certify documents or authenticate signatures on them.
Before notarization, it is the duty of the notary to fully identify the parties and certify their authority and capacity, as well as the legal validity of the act itself; therefore, there is a legal presumption that a contract executed before a notary public is valid, and this is based on the fact that the notary has carried out all the necessary procedures to verify the identity of the parties and ensure that they agree to the terms of the contract.
It is important to note that notarization is not an absolute guarantee of the validity of the contract, and legal disputes may still arise regarding its interpretation or execution. However, notarization can be an important factor in the resolution of such disputes, as it provides clear and verifiable evidence of the existence and content of the contract.
Additionally, Mexican law allows for the resolution of the contract due to non-compliance with the agreed obligations, in which case the affected party may demand specific fulfillment of the contract or, if the non-compliance is serious, the resolution of the contract.
