Abstract

PICO ZUNIGA, Fernando. THE DUTY OF COHERENCE AND COOPERATION IN THE EXERCISE OF THE DISCRETIONARY, SUSPENSIVE AND PENDING CONDITION. Vniversitas [online]. 2013, n.127, pp.281-308. ISSN 0041-9060.

The principle of good faith has been and is, without doubt, a legal, effective and appropriate tool to solve what legal science identified long ago as the "crisis of the contract", which is nothing but the crisis in their assumptions of the contractual autonomy will and freedom to contract. Just as the unyielding defense of budgets of the classic private law has generated the problem in question, the uncompromising support of good faith under certain assumptions can forge the conservation of improbable and unjust situations within the contractual process. Hence it is necessary to establish premises that allow for a successful application of the principle, and particularly the collateral duties emanating from the so-called objective good faith. In that sense, this research paper aims at clarifying whether, in light of the duties of cooperation and consistency, the obligor must perform simply the fraction of the discretionary, precedent and pending condition he has agreed with its co-contractor. According to this approach, it is concluded that in accordance with the postulates of objective good faith, legitimate expectations based on the co-contractor and the Article 1538 of the Colombian Civil Code, verifiable premises by the judge in the case, the required must meet the fraction of the rightful status applicable to him under penalty of causing damage in the other party.

Keywords : Principle of good faith; objective good faith; secondary duties of conduct; duty of consistency; duty of cooperation; conditional obligation, condition; discretionary condition; legitimate expectation; Good faith (Law); conditions (Law); expectancies (Law).

        · abstract in Spanish     · text in Spanish     · Spanish ( pdf )