Formation of Administrative Contracts

Legally the life of a contract begins at its formation after parties have consented to be bound by it, if parties have the capacity to legally express their consent and if the object of their contract is succinctly defined, plausible and lawful.  [Art. 1678]

Short of this, the law either declares the contracts void or puts the possibility of voidability as the case may be.

Normally the requirements under Art. 1678 are those which determine the viability of any contract. Under this very normal condition, exceptional situations are envisaged with regard to formality requirements. In addition to consent and object requirements, the law also shows the possibility of agreeing in favor of a given form or a form by the normal operations of the law [art.1678 (a) and Art. 1719 by virtue of Art. 1676]. Thus, the law either prescribes adherence to a certain form (Arts. 1724 & 1725), or parties may agree to make their contracts in a written form. Art.1724 makes mandatory that contracts with administrative authorities be made following a written form. Any contract to which a government agency is a party, including any type of employment contract, should be made in writing. In public administration, officials do not stay in office indefinitely rather they may leave their office by election, removal or resignation. Once they leave their office it is difficult to ascertain the content of the contract entered into during their stay in office but that continues to be effective even after they leave their office. Moreover, oral contract opens a room for corruption since keeping information is difficult.

As was noted before, Art. 1676 warrants the use of Title XII on contracts in General by explicitly stating “… regardless of the nature thereof and the parties there to.” Because of this, Art. 1678 and consequent provisions that govern the formation of a valid contract will also be valuable in our consideration. In addition, Articles 3140-3145 and 3134-3136 will be considered. By presuming that you have made an intelligible discussion on the General contracts aspect of the law, our concentration will be on the special part of the law that governs administrative contracts proper. Let us consider the validity requirements.