LA CONCEPCIÓN Y EFICACIA DE LAS AUTORIZACIONES A PROCEDER.

Abstract

Authorization to proceed is currently one of the precontractual concepts that is seeing the heaviest use in complex transactions featuring relatively short completion periods. It is employed fundamentally when there is some interest in being able to get a project done by its established deadline even if the underlying contracts are so complex as to require an even longer time to conclude. Despite the frequent use of authorization to proceed, this precontractual institution is surrounded by a great many controversial points. One of the roots of controversy is the absence of any regulation of the concept. And because of that, doctrine and case-law generally accord it no specific treatment and even ignore its existence, as an autonomous precontractual concept existing on its own. It may be concluded, from an analysis of the component elements and purpose of authorization to proceed, that this concept is an autonomous contract whose main feature is that it obligates a party to provide a specific performance in exchange for the appropriate obligation to compensate for that performance. Indeed, authorizations to proceed have certain contractual elements of their own that are independent and different from the elements of the definitive contract. Their purpose is partial performance; their cause is a promise of economic consideration and a promise of performance; and their consent is the signing by both parties of the authorization to proceed. In consonance with the analysis, it must be concluded that authorizations to proceed bind the parties to do as stated, that is, to perform the project partially and to pay the appropriate consideration. When these contractual obligations are not fulfilled, the respective indirect or consequential damages and any loss of profit must be paid, although the damages will always be restricted to the scope of the authorization to proceed, not the definitive contract.