Abstract

GOMEZ VASQUEZ, Carlos. Contractual risk in colombian civil Code and commerce Code. Dogmatic analysis of norms in force. Opin. jurid. [online]. 2007, vol.6, n.12, pp.105-121. ISSN 1692-2530.

As we have two general statutes of private law in Colombia: Civil Code and Commerce Code, solution to contractual risk problems should be based on a differential analysis of both normative regimes. First, civil dispositions are analyzed to conclude that Civil Code generally involves res perit debitori, except when dealing with obligations to provide or deliver one or several individuals; in such a case, ex art. 1607, res perit creditori is established. Then, mercantile dispositions are analyzed and it is established that Commerce Code accepts res perit debitori as a general criterion applicable to all kind of obligations, notwithstanding its objective or benefit (provide, deliver, make, not make). Finally, such regimes are compared to conclude that criterion prevailing in Colombian private law is the traditional res perit debitori, without affecting exceptional application of res perit creditori in article 1607, Civil Code.

Keywords : Contract; contractual risk; theory of risks; res perit creditori; res perit debitori.

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