It is common that, when contracting telephone, cable, internet, insurance, among other services to the public, the contracting party has the option to accept or not the conditions of the contract, without any negotiation. The “form” that is filled out when contracting these services is an adhesion contract.
The legislation is brief but sufficient. At least, commercial practice has filled those legal gaps. The forms we fill out work because negotiating each of the services we acquire would be impractical and tedious.
However, a couple of years ago, before the Congress of the Republic, the initiative of law 5600 on the reform to article 1520 of the Civil Code was presented, which intends to reform by addition the following:
- The contract must have express acceptance of both parties.
- The contract must be written, at least, in font size 12.
- A legend must be included indicating that the components and/or annexes of the contract have been understood, and that physical access to said document has been had.
- A complete and paginated copy of the contract with original signatures must be delivered to the contractor.
- In the case of contracts drawn up in public deed, the following sentence must be included: “The contracting parties assure that we have fully understood the components and/or annexes that are part of this contract, of which we have had physical access and we undertake to request the authorizing notary a legalized photocopy of the contract with its additional components and annexes for our files”.
Is it really a contract of adhesion the one that is celebrated in public deed? No. The notary attests to the agreements and manifestations of will of the parties. In the case of being a contract of adhesion, the wording would be atypical, since the whole contract would be a manifestation of the offeror and, only the acceptance, an agreement of both.
Although the notary may issue a simple legalized copy of the public instrument, the suitable reproduction would be a testimony for the parties, which is an obligation of the notary to grant it, but not of the parties to request it. It is a right of the grantors to obtain the testimony.
- It cannot be understood that there has been acceptance of the contract when there is no evidence of the existence of inconspicuous texts and documents, at the foot of the page, on the back of any page or in annexes, and that the contract provides that they are part of the same.
- In case of non-compliance with any precept, it will be understood that the contract is null and void.
By contemplating that the consequence of non-compliance is nullity, it is converting the requirements described above into essential requirements of the contract, without which it is not born to legal life.
It is, therefore, one of those initiatives that it is hoped will not move forward and remain filed in some cellar of the Congress, since, instead of speeding up the commercial traffic, it would hinder it.