Notes about rescission of contract from the Supreme Court’s ruling of September 27th, 2016 (“INELCO v. SAESA”

Abstract

This comment aims to highlight, from the analyzed ruling, some relevant aspects of the remedy called rescission of contract. In this way, we will refer about the purpose of this mechanism, a common aspect that it shares with other contractual remedies, that is, to satisfy the interest or practical purpose of the creditor, frustrated by the debtor’s default, and that, in particular, consists in unmake the contract in order to seek a replacement in the market. Afterwards, we will attend to what concerns the unilateral and extrajudicial exercise of this remedy, to then examine the wording of the stipulation, as well as the seriousness of the breach of contract, assuming as a starting point that the best way to regulate the exercise and efficacy of this remedy is through a resolutory clause. Finally, we will offer some conclusions.