Before we start talking about the balance between benefits, let us immediately state the core of this debate: Every unbalanced human relationship inevitably leads to disaster. Let us rectify from now on: Not all, it is true, history is full of abuses that have been sustained over time, including some that under their evident inequality have borne fruit -generally, it must be said, not for the weaker party but for the benefit of third parties- from which, in some cases and not a few, even all of humanity has benefited and for this reason we remember them. However memorable these successes may have been, they are still exceptions and everything seems to indicate that in the “Universal History of Infamy“, to recall the title of Borges‘ book of short stories, the failures are the majority and are also, for the most part, painful.
The history of literature has many examples of disastrous relationships between writers and publishers, between blacks and authors, between geniuses and collaborators, and between audiences and creators. Who does not remember Balzac and his marathon nights to meet the commitments he had made to his publishers of the “Comédie humaine”? Who does not remember the abuses of Count Almaviva in the “Marriage of Figaro” operatic adaptation of Beaumarchais’ comedy? In the world of cinema we have seen thousands of examples and films that did not end, actors who do not seem to act in films in which they participate due to contractual obligations and productions that went over budget because one could and another did not want to. How many masterpieces have fallen by the wayside and have never become more than an anecdote, and how many others have been at the cost of sacrifices beyond all reasonableness.
If, in life, unbalanced human relationships usually foresee their end from the very beginning, let alone love relationships, the same is true of contracts.
Everyone knows what a contract is. It is not worth extending but it is worth remembering that, among many other things, a contract is an agreement between two or more parties for the achievement of an end (which can be divided into several ends) desired by the contracting parties (their consent depends on this desire) and that without the assistance of these parties, this end would not be achieved or would be achieved at a much higher cost. It is true that this apparent simplicity hides many recoveries that have generated centuries and centuries of legal literature, a tenacious interpretative effort and produced the most contradictory jurisprudence, but in spite of this, the purpose – “to each his own” to use the title of Linares Rivas’ work – and the “superior cost”, the latter being a totally subjective concept, are two elements that must always be present.
Thus, the fundamental principle of any contract is the balance between benefits. Every contract has a purpose, “something” to achieve, to obtain from the parties either by action or omission, subjective no doubt, but to the extent that we contractualize it, we are in some way objectifying it. Every contract has an object that justifies it and that through the contract becomes viable. For this, it is essential that both parties fulfill the obligations to which they have committed themselves, but for this, it is even more necessary that the parties feel that the benefits are balanced, but to the extent that we contractualize it, we are somehow objectifying it. In short, the parties must always seek that the success of the contract does not fall on one of the parties or that there is a huge gap between the obligations of one party and the other. This is the only way we can make the contract meaningful and put it on the road to success. Nothing is assured, but without this your success becomes very complicated.
The latter refers to the well-known principle of rebus sic stantibus and the need to restore a situation of equilibrium when, due to supervening circumstances, this balance of benefits has been broken and an exceptional situation of imbalance between the parties has arisen. Both doctrine and jurisprudence have taken care to remind us that “hardship constitutes the exception to the general rule of the obligation of performance of contracts“. For these purposes, “supervening onerousness” should be understood as the imbalance between benefits occurring or known after the perfection of the contract, provided, of course, that such events could not have been foreseen by the aggrieved party, had they been beyond its control and it had not assumed, even hypothetically since they were unknown, the risk of such events. It is evident that in these cases the need to restore the balance between the parties becomes a priority and for this, the application of the principle of contractual good faith becomes indispensable. There is little controversy in these cases and the whole discussion shifts to the analysis of the facts that have caused this imbalance, whether such imbalance is real or apparent and to what extent it represents a serious imbalance and, finally, how to reestablish the initial equilibrium situation.
In short, it is always advisable that in the formalization of the contracts the parties state the reason that impels them to contract – however generic it may be – that helps to interpret the contracts, its reason of being, to avoid misunderstandings and to raise the cases of supervening onerousness. In a sales contract, the reasons are clear: one wants to sell and the other to buy, but at any price, assuming any condition, what do I want to buy and in what condition? If this is so in these contracts, let’s imagine it in other types of transactions… In any case, the idea of these lines was to reflect on the imbalance of benefits at the beginning. From my point of view, for a contract to work from its inception, it must necessarily reflect an equilibrium in its basis. Without it, the contract goes “defective from the factory” which, as is known, can easily cause a deviation in its execution that is more than likely to prevent it from achieving its intended purpose and in the words of Fouché on the decision to behead Louis XVI, this would be “worse than a crime“, it would be “a mistake“.
