What is the appropriate route for a Lump Sum Works Contract Dispute?
The commercial route is the appropriate one to resolve a lump-sum construction contract dispute entered into with a company dedicated to construction and whose purpose is to carry out works that are directly related to its corporate purpose.
"The First Chamber of the Supreme Court of Justice of the Nation, in recent days resolved by contradiction of criteria of various Collegiate Courts, the jurisprudence with the item"
The foregoing to give legal certainty regarding the positions that existed on the proceeding route, considering that it was held that the mercantile route proceeded because it was an act of commerce, while it was also determined that the proceeding route was the civil one as it was a contract regulated by the Code in this matter, in this case the Civil Code.
Important considering that there were already expositions of ideas regarding the issue of the road in various jurisprudential criteria by the First Chamber
Which concluded that in the event that for one of the contracting parties the legal act is of a commercial nature, and for the other, of a civil nature, the problem about the origin of the route, to resolve conflicts arising from said agreement of wills, it is solved from the application of article 1050 of the Commercial Code
That is, the commercial route will proceed, which to determine the commercial or civil nature and, therefore, the jurisdictional route to demand the breach and termination of a work contract at a lump sum.
The acts that the law determines as typical of commerce should be taken into account, considering article 75, section VI, of the Code of Commerce classifies "construction companies" as an act of commerce.
Therefore, in order to determine whether a fixed-price construction contract is of a commercial nature, it must be analyzed whether it is carried out with the intention of obtaining a profit as a result of its subscription, appreciating the generating cause that prompted each of the contracting parties to sign the contract.
For legal entities, if the legal act entered into as a contractor shows that within its objects are to engage in construction and restoration,
This denotes that within its main purposes are, precisely, the performance of commercial acts that deal with those items, through which it pursues commercial speculation.
Consequently, when a moral person constituted under these terms signs a work contract at a lump sum, it is uncontroversial that it performs an act of commerce
Ain accordance with section VI of article 75 cited; and, when this happens, the proper way to initiate the controversy derived from the aforementioned contract is the ordinary commercial one, even though the contracting party has entered into the pact of merit seeking to satisfy their need for housing.
Which is classified as a purely civil act, since for the application of commercial laws it is enough that the indicated contractor has carried out the legal act with a predominantly speculative purpose.
Although the work contract at a fixed price is regulated by the Civil Code, the Supreme Court of Justice of the Nation, determined
That under the legal study that the agreement of wills of the construction companies that intervene in the celebration of the legal act, tends to be of the so-called commercial ones.
In such a way that the commercial route is appropriate to resolve the controversies that arise due to the contract, considering the relationship of the corporate purpose of the companies, the above in terms of section VI, of article 75 of the Code of Commerce.
