Abstract

FORTICH, Silvana. Solus consensus obligat: a general principle of law of contracts. Rev. Derecho Privado [online]. 2012, n.23, pp.179-195. ISSN 0123-4366.

Abstract In contract law, solus consensus obligat means that, by general rule, contracts are executed by the mere consent of the parties and there is a freedom regarding the ways for its externalization. Today the word "consensualism" is inevitably preceded by the descriptive noun "principle", indicating that the principalistic character of consensualism is evident, at the point that this idea is rooted on the bases of our private law of contracts. Despite the principalistic quality of consensualism, in the present document, we set aside this conviction and focus on the rescue of the reasons that justified the elevation of consensualism to the rank of principle. After reviewing the concept and its moral foundations we would try, by the formulation of a conceptual confrontation, to exalt this principalistic character of consensualism.

Keywords : principles of law; principles; sources of law; contracts; formation of contracts; party autonomy; consensualism; formalism; form.

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