LA SIMULACIÓN Y LAS DONACIONES ENCUBIERTAS DE INMUEBLES BAJO LA FORMA DE COMPRAVENTAS. DETERMINACIÓN DE SUS SUPUESTOS Y SUS EFECTOS.

Abstract

It is a fact that people simulate contracts in order to conceal gifts. Our courts often have to deal with such cases. However, there is no specific regulation on the topic. Most case law and doctrine regard simulation as a defect of contract cause, or, to be more specific, as a case of false cause (in relative simulation) or non-existent cause (in absolute simulation). A careful analysis of the elements of simulation suggests that in this phenomenon there is a single contract made up of two statements declaring a single intention. Therefore, simulation does not constitute a defect of contract cause or, as some doctrine used to hold, a defect of contract intention. Simulation does not involve any defect in the elements of the contract at all; it simply involves the coexistence of two voluntary contractual statements, one made between the parties to the simulation and one made vis-à-vis third persons. So, the efficacy of a simulation depends on our discerning which of the statements should prevail if both statements cannot coexist. As some doctrine points out, we could make out two spheres of efficacy: one between the parties to the simulation and another vis-à-vis third persons. In the case of relative simulation, the simulated contract should be effective vis-à-vis third persons. This is because of the protection accorded to third persons acting in good faith and because of the doctrine of estoppel, among other reasons. The simulating agreement, however, would have effects only between the parties to the contract. In cases of absolute simulation, because the simulating agreement denies the efficacy of the simulated contract, the usual solution is to enforce the simulated contract erga omnes, as the two contractual statements are incompatible with each other. And the fact is that when this happens, preference would seem to have to go to the legitimate expectations of third persons acting in good faith, instead of going to the spurious interests of the parties themselves. Obviously, in cases where the cause is unlawful (such as evasion of creditors or fraud in regard to hereditary rights), the contract would be void under section 1275 of the Civil Code.