Nancy Chamorro Mauricio The legal effects of the simulation
When the legal act is lawful simulated can generate fully effective against third parties, but not between the parties. However, the simulation is intended to deceive others or is contrary to peremptory norms, public order or morality is rejected by the law, ie is illegal, its effectiveness will be enforceable, it will take care to below.
Effects of absolute simulation between the parties
If the legal act has made a complete simulation, in which there is only one apparent act unreal, it lacks content, for the will of the parties was only contained in the agreement precisely simulatorio agreed not to produce a true act, the legal act and not produce any effectiveness dummy, so the case has been saying, which states that the absolute simulation has the effect that the act is invalid and not supported by your validation or confirmation. The simulation on a voidable act that can be confirmed.
The event simulated is a sham wanted and made by the parties to deceive others, but not to produce effects between them. Grantors want the declaration but not its content, therefore, can not enforce them. That is, the simulated event has no effect between the parties, for the reason that it is not only effective but mock wanted. This is the foundation of inter partes invalidity of the act that lacks absolute simulation. There is thus a discrepancy with the statement of the jurist LOHAMANN, who refers to the absolute simulation necessarily require a judicial decision, by a sentence. We should note that the act is void from its genesis, in addition, that the judge may declare its own initiative under Article 220 of the Civil Code, without needing to bring an action for annulment.
The lack of effect between the parties of the simulation is independent of its legality or illegality. A dummy act, devoid of content, even if lawful, can not effects for giving, because that was their common intention to grant it. A fortiori, if the simulated act is illegal, does not produce the effect between the parties, or anyone else. If the simulation is lawful only be invoked by the parties, third parties are devoid of action because they have no legitimacy to act.
simulation effects on the parties:
simulated
This will impact business between the parties, provided that the conditions of validity and does not prejudice the right of the third. Thus, the legal transaction concealed (hidden and real) effectively binds the parties as long as they attend to your requirements validity. In addition, the legal business should not affect the hidden third party's rights. Here it protects the interests of third parties to assert the reality (hidden business) on the appearance (business simulation). It is irrelevant whether the business simulation (apparent and fake) does not meet the requirements of validity.
The above rules on the effects of simulation on the parties, are based on the principle of respect for the will of bargaining, in its hidden nature is effective because the parties have actually intended as an act to take effect that are unique, whereas in simulated character is ineffective, lacks absolute simulation because effects are peculiar to the figure used to hide the real nature of the act are not intended by the parties.
Our National Legislation, Article 191 of the Civil Code, with respect to the effects of simulation raises questions on us, and to respect the lawyer LOHAMANN says: And what happens when the business secret, even if the requirements of law, infringes a legal provision? For example, when disguised as a sale contract and the interpretation of it is seen that is a key provision, the deferred price with usurious interest, or sale clause also essential to force the seller in the event of termination to pay more than the sale price. In this and other cases in which substantially and formally still valid concealed the contract is imposed for revocation and the business will have no effect concealed valid between the parties. The second question is with regard to formality. Suppose for an ostensible business, the apparent formal full, which hides itself in a different business that has not been implemented separately. For example, the sale by writing declaring that the total price received by the seller, thus hiding a donation. Would it void the donation because it, like this free business, has not been adequately formalized, but will donate the flow of documents private transfer deed has been running for? In this case is to opt for the most favorable to the maintenance of the hidden will, provided that no harm to others and dependability that ensures the existence of reporting and the substance may be in the business or apparent agreement disguise ( counter-statement).
Effects of partial simulation between the parties:
When the simulation on a partial objective, that is, when the parties do not hide the overall style of doing business under the guise of another business different, but only certain aspects by provisions or clauses referring to inaccurate data, have effects including accurate data, hidden, to be the actual ones, provided they are lawful and do not affect the rights of others.
On the other hand, the simulation on partial subjective fictional intermediary, the front man does not acquire or transmitted rights, but serves as a link to go directly to the right of trasmitente, cash hidden owner. Simulatorio agreement exists between disposing of the right, the front man and acquiring cash, so that the simulation of person is always partial, it is apparent throughout the event, but only in relation to one of the subjects. The front man does not buy anything, pay a collaboration purely material, the legal relationship is established from the first moment between trasmitente and the real purchaser. The only law that transfers apparently agrees with the appellant, but on the understanding of obligations to the third, against which acquires the rights and assumes the obligations of the act.
effects between simulants and others: There
the principle that legal acts in effect only those who conclude, however, this assertion is not as rigid in the case of simulated legal acts. In that sense, it is understood by others, those who have not participated in the celebration of the act law, or by itself or through a representative, and therefore can not benefit or suffer its effects. Now, on the issue of third parties in respect of pretense, will only have a right to good legal or contractual.
third party may be absolute and relative. Is third overall who has no legal relationship with either party. Is third on, that being other parties of the act, can be achieved, positively or negatively, by its effects.
Relations between simulants and others, is based on the principle of relying on the simulation, simulants, third in good faith. The simulation until it is discovered, it is irrelevant to others. In principle, the simulated act is valid and effective against third parties. If the simulation is relative, found the act is valid concealed it.
effects between the simulants and third party purchasers of the apparent owner:
Article 191 of the Civil Code establishes the confidence of the third sub-purchasers in good faith and for value. The bona fide third parties are protected by procedural enforceability of the claims made by the parties or by the injured party. It protects the interests of third parties in good faith by substituting appearance (legal business simulated), the reality, they have acquired legal situations subjective apparent owner. So, you can say that the business simulation is effective in respect of bona fide third parties. Here protection trust based on the appearance and the apparent owner is considered as beneficial owner.
The good faith of the third has to be objective. The existence of the subjective good faith is currently questionable doctrine and jurisprudence. Subjective good faith or good faith belief is defined as ignorance of injuring the rights of others, or the idea of \u200b\u200bstanding positively behaving according to law, caused by an error. This definition is inapplicable in the legal system that enshrines the principles confidence and appearance.
By the principle of legal certainty, who has acquired in good faith and for value, rights or interests, on goods that were the subject of simulated act, is fully protected for the benefit of the unenforceability of the simulation, even when simulated the act is declared invalid. Our legislation protects the rights of third in the Civil Code Article 2014, that is, traffic safety assurance of the right sacrifices. This sacrifice takes place, if a person acquires a right and another case that the right of the grantor is null, "common law" states that will also void the right of the purchaser, because no one can transfer more than what you have and no one can buy more or different law than that which it transmits. This solution, given by "the right extraregistral" is sacrificed, however, by the "traffic safety", which states that if such invalidity shall not appear of record, the purchaser acquires the title and the invalidity of the grantor not disadvantage. It concluded that simulation may not be invoked by the parties and third, third subadquirente has acted in good faith.
effect between the simulant and simulant creditor of transferor:
The third persons are authorized to act. Indeed, the business simulation is ineffective for those parties whose rights are harmed. The rule seeks to prevent harm to be produced with the simulation, third. When the simulated business assets decrease or increase the liability of the debtor, creditors are entitled to request the ineffectiveness of the business. Similarly, the heir to a business damaged by simulated concluded by his predecessor and the injured spouse for a simulated business held by the other spouse, are entitled to request the annulment.
effects between the simulants and third-party creditors of the apparent owner:
simulated
The legal act is valid and effective against third party creditors of the buyer (holder apparent). The creditor in good faith acquirer simulant opposite interest of the creditor of the simulant alienating. His interest is to prevail appearance over reality, in order to satisfy the debt with the execution or enforcement of the good that has apparently entered the assets of his debtor.
The authors of the simulation can not oppose it, a third-party creditors of the apparent owner, but on the contrary, acquiring third-party creditors of the seller, can enforce the simulation in relation to the parties, if it impairs their rights.
effects between creditors on both sides simulants:
As there is a conflict between creditors and creditors of the transferor simulant simulants purchaser (holder apparent), according to Dr. Torres presented the following situation.
a) .- If both creditors in conflict pre-date the simulation will be preferred Believing the transferor, as the victim of the simulation, the creditor of the buyer loses nothing, therefore, not counted in the assets of debtor, property acquired after that may blur.
b) .- If both creditors are dated back to the simulation, it is preferred creditor of the apparent owner, already counted in the assets of his debtor, to goods entered in a simulated, while alienating the simulant creditor no longer had the assets to the assets of the debtor.
c) .- If the transferor's creditors are prior to the simulation and the apparent owner is later, preference is given to the victims of the simulation, on the creditors of the apparent owner. This even though they have begun in good faith, forced execution, succumb to the conflict with the creditors of the simulant seller, whose credit is simulated prior to the act.
effects between the parties effective and figurehead:
The figurehead is a person who does not acquire any right, therefore, either party may oppose this simulation.
The action for annulment by simulation
As explained above, the simulated events, does not correspond to real and serious will from the parties, do not generate valid purposes are invalid, nonexistent. But as they were held with all the appearances and overtones of the acts actually held and valid, remain valid and effective as such, and there is a risk to be validated if they are not challenged early, when not to go before a judge and get the sentence or judicial declaration to establish the invalidity question.
The right to question the validity of the simulated is exercised by the action of nullity by simulation, which as authorized under Section 193 of the Civil Code of 1984, may be exercised by either party simulants, or the third party that has been harmed by the simulation, as appropriate, and without discrimination, which means that it is appropriate in all types of simulation, absolute and relative, legal and illegal.
For better understanding of the action for annulment by simulation, should be considered in its two forms, absolute and relative, and in the case of transfer to third parties.
For absolute simulation
As explained, complete the simulation, the act is void, not intended to be legal or illegal, but for the simple reason that there is, so can not generate any effect. If so, any party simulants, or both, have the right to request a judicial declaration that the act is void, because it does not respond to a declaration of intent, and that neither one or other of those simulants can demand compliance, or that their effects must cease.
The nullity of absolute simulation can also be brought by third parties, but only on the assumption that they would harm the effects of simulated act otherwise would have no legitimate interest, economic or morals, referred to in Article VI of the Preliminary Title Code.
As required by Article 1096 of the Civil Code of 1936, between the parties simulants could demand the annulment of the act absolutely simulated at any time, because the action was inalienable, given that over time can not give life to what does not exist, while for others if he could prescribe an action for annulment by simulation in terms which provided for the nullity of the act in general.
The current Civil Code of 1984 has not reproduced the wording of Article 1096 of the Civil Code of 1936, but rather, in article 219 of the invalidity of the act in general, Section 5 provides that the legal act is null simulation vitiating absolute, and that Article 2001, adds that the nullity action prescribes after ten years, which means nullity action prescribed absolute simulation ten years, both parties simulants to third parties, on the grounds that no distinction is made.
For simulation on
Of the two legal actions in which the simulation unfolds on the apparent and false, to be absolutely null, without doubt, must be subject to the rules applicable to simulation absolute studied in the previous case.
But the situation is different hidden secret ceremony, that being real, and may be valid also can be null. Indeed, if the measure qualifies hidden substance and form, and does not prejudice the rights of others, is perfectly valid and therefore unobjectionable and invulnerable.
But if the act does not qualify hidden the substance and form required by law in Article 140, for holding valid legal acts in general, also becomes absolutely zero, applying the above rules .
In the latter case, if the hidden act together those conditions of substance and form, but adversely affects the rights and interests of others, it is relatively void or voidable, as required by Clause 3 of Article 221 of the Code of 1984, prescribing the action of nullity for the parties and third parties two years, as established in Article 2001 Paragraph 4 of the Code.
In the case of transfer to third
In the event that the simulated act real objects have been transferred to third parties, but the action required, would be no valid reason for not allowing the action for nullity simulation is also extended against such third parties. However, no in all cases of transfer to third parties of goods from a simulated act, an action for annulment by simulation, is destined to succeed, but depends on whether the transfer was made without consideration or such consideration. Namely:
- If the third party acquirer obtained the prosperity of the title-free thing, that is by universal or particular succession, no matter if it acted in good faith or not, because in both cases, or in any case, the act shall be void. And the third purchaser has to pay back the thing thus acquired.
The explanation is very simple, because the plaintiff acts damno vitando, that is, to avoid damage to its heritage while the third defendant defends or profit capturing, in which case the law, and considering or facing a different situation, to avoid injury or facilitate a profit, towards a more equitable alternative, ie the first.
- But if the thing took the third consideration, the most serious and difficult, because both parties act damno vitando, none capturing profit, that is, in a situation of parity, one demanding the restitution of what gave only simulated without actually receiving anything in return, while the other denies the claim to not lose what they gave in return for something received.
Undoubtedly, the solution fair, is to protect the one in position of the thing, the purchaser for value, but not in all cases but only in the case stating that it acted in good faith, unaware of the defect affecting simulation nullity succedent title. Unable to rely to that acquired in bad faith, we celebrate the act knowing the cause of invalidity by simulation, showing its intention to submit to the same contingencies that were subject succedent, ie, at risk of losing the thing that way acquired.
Article 194 of Civil Code 1984, provides that the simulation can not be invoked by the parties or by the injured party, who in good faith and for consideration has acquired rights of the holder apparent.
Presumably, the above rules apply to subsequent transfers and subsequent purchasers, carrying the recall of all those affected with the listed causes of invalidity, until this one displaying a title subadquiriente invulnerable, that is, who acquired the property for value and in good faith.
simulation test
The simulation is not presumed, but must be accredited by the person away, according to the procedural rules of Onua Provendier.
are two ways to test the simulation. First, there is direct evidence, it is difficult and limited, because the simulation is precisely to give the appearance of authenticity to a false statement, and sometimes consist of instruments such public appearances. This direct evidence may consist of the use of contradocumentos one of whose cases mentioned in Article 411 of the Code of Civil Procedure, and confession.
Second, lacking direct evidence, there is no other alternative, to acquire indirect proof, which can only be established by evidence, evidence and assumptions, which can lead overview of the evidence or conviction that the act could not be anything other than simulated.
Given their nature, correspond the field of circumstantial inferences, can not undergo the action of the indirect test a priori rules and criteria. The only thing possible is desirable and that the evidence, presumptions, or inferences, are severe and consistent. As an example, simulation can indicate the relationships among the simulants. The economic failure of the purchaser, the nature of benefit levels with the lack of implementation of agreed obligations, the determining motive of the simulation, etc.
difference of simulation and other legal
Simulation and mental reservation:
In the mental
occurs when the subject does not want the effects of the act that celebrates. Because the mental is a psychic event that is not knowable by the other party involved in the act or by third parties, whose aim corresponds almost always to the will to deceive, the subject remains connected to his statement, ie, the mental is irrelevant to the objective law for lack of outward expression.
In the simulation there is joint party to celebrate the event, but it does not take effect between them. In contrast, the mental reservation is a unilateral violation, purely internal, unspoken, designed to deceive the other party and not necessarily to a third party.
Simulation and mental reserves are similar because both are pursuing a purpose of misleading, but differ because:
a) .- With the simulation seeks to mislead others, with the mental reservation is deceiving the other party involved in the act and not necessarily to others.
b) .- The simulation requires the agreement simulatorio, what is lacking in the mental.
c) .- The reservation can take place in any legal action, whether on property rights not available or not, whether bilateral, plurilateral, unilateral receptive or unreceptive. In contrast, the simulation operates only in the acts concerning economic rights available and acts only in bilateral or plurilateral or unilateral receptive, not active on unilateral acts did not receptive.
d) .- The reservation does not affect the validity of the simulation is grounds for annulment.
Simulation and Trust Act:
Article 241 of the General Law of Financial and Insurance System and the Organic Law of the Superintendency of Banking and Insurance Trust conceptualized the act under the following terms: The trust is a legal relationship by which the trust property fideicomintente transferred to another person, difuciario called for the establishment of a trust estate, subject to the domain trust and affection of the latter upon a specific purpose for the settlor or a third party called a trustee. From concept
article can be seen that an individual transfers property to another, but not ownership, so that later can be restored, in addition, that is real, the parties really want what they have stated they want the act takes full effect, while in the simulation appears to permanently transfer the property right, however, simulant want the act but not the effects.
Simulation and indirect representation:
In indirect representation, bringing the person is real, because although brought interponiente acts on behalf of such representation is not known who held the spot. The indirect representative, in accordance with its powers and protect the interests of the principal, acting on behalf of itself, so that the third party contractor believed to contract with him. Therefore, there is real filing, because it truly is celebrated on the subject brought business, even if ultimately the business purposes of the broadcast to the principal that has not given a direct representation.
In the simulation through an intermediary, the filing is fictional because that celebrates the business, knows that brought is a figurehead and that the effects of the ceremony is projected onto the simulant interponente because simulatorio is tripartite agreement, since it involved both parties filed simulants and the person who deliberately, according to both parties, is provided for the formation of simulated legal act.
simulation and deceit:
The intent is deception used by a party or a third party to induce another to enter into a legal act. In contrast, in the simulation the parties agree to perform an act. The simulation can be lawful, however long the fraud be unlawful.
Basic Bibliography
TABOADA CORDOVA, Lizardo: Act Law, Business Law and Contract, First Edition, Lima - Peru 2002, Editorial Grijley.
VIDAL RAMIREZ, Fernando: General Theory of Law Act, Lima - Peru 1986, Cultural Cuzco.
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