The consent must be a declaration of willingness to want to contract. It is the agreement of wills of two or more people on the cause and the object of the contract.
Consent is an essential requirement of all contracts and consists of the declaration of willingness to enter into the agreement.
Consent, together with the cause and object, are the essential requirements for a contract to be valid. If any of these elements are missing, the contract will be void.
For consent to be valid and to enter into a contractual relationship, people must have the capacity to act. Free consent is required for both typical and atypical contracts. There are exceptions, emancipated minors can enter into some contracts.
Emancipated minors may consent to enter into contracts permitted by law and those customary in ordinary life for their age.
We must differentiate between internal and declared will, since it is very important to understand when the will is vitiated:
- Inner Will: it is the purpose for which a person is guided to enter into a contract.
- Declared will: it is the declaration that is issued externally and is the channel through which the internal will is shown.
This consent must be conscious, voluntary, rational and free. It cannot be subject to any condition.
vices of consent
The vices can cause the contract to be annulled, that is, it can cause complete nullity:
- Error: there is a failure in the formation of the internal will which makes it celebrate a contract that otherwise would not have been signed. There are two types of errors:
- Error in the consent: in this case, the internal will is formed incorrectly, believing something that is not about the contract that is going to be concluded, but the internal and external will coincide. For example, a person who believes they are buying the latest model of a mobile and it is not.
- Obstative error: in this case, the internal will is formed in the correct way, believing something about the contract that is true, but it manifests itself in another way. That is, the internal will does not coincide with the external, due to an inadequate declaration or expression. An example would be wanting to sell, but writing in the contract that what you are going to do is rent.
- Violence and intimidation: This means that one of the contracting parties does so out of fear of suffering imminent harm due to an unjust and serious threat, which may affect him or his descendants, ascendants or their property. This threat can be either physical force (violence) or moral coercion (intimidation). The person who threatens and exercises this fear must do so consciously, that is, with intent or guilt.
- Idol: this vice refers to cheating. One of the parties to the contract causes by his words or actions the other party to enter into a contract that he would not otherwise have entered into. There must be a deceitful plot. In addition, there must be an intention to deceive, the deception must be serious and decisive for the other party for it to enter into the contract. Likewise, it is necessary that the deception is done by one of the signing parties and not by a third party. It is also fraud to take advantage of the situation of need of the other party to the contract.