Examinando por Materia "Nulidad absoluta"
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Ítem Alcances del principio de planeación en la contratación estatal, en sus dimensiones técnica, jurídica y financiera(Universidad EAFIT, 2016) Suárez Zuluaga, Luisa María; Vélez Amaya, María Clara; Gil Alzate, WillingtonPublicación La violación del principio de planeación como causal de nulidad absoluta del contrato estatal por objeto ilícito en la jurisprudencia del Consejo de Estado 2010-2018(Universidad EAFIT, 2018) Gómez Ramírez, Zaida Johana; Suárez Tamayo, David;70565233Absolute nullity is considered the most serious sanction to which an agreement can be submitted, insofar as it implies the loss of validity of the legal business. In view of the fact that, in general terms, the absolute nullity comes before the existence of untenable defects in the agreement, it is the duty of the judge to declare it, not only at the request of the parties, of the third parties with direct interest and of the Public Ministry, but ex officio. In line with the above, being the declaration of absolute nullity of the agreement, rather than a faculty, an obligation of the judge, it becomes relevant to know what has been the jurisprudential development that has been given to the theme, especially in what concerns the absolute nullity of the state agreement, generated in violation of the planning principle, by illicit object. For this purpose, a selection of 28 Council of State pronouncements, 27 of the Third Section and 1 of the Fourth, to which reference will be made in this document, was made. In this regard, it is noted that the State Council has managed to specify that, only when a failure of the planning of the agreement, since the signature of this, (i) warns that the contract object cannot be realized, (ii) or that its materialization will be subject to indefinite or uncertain situations –for needing the decisions of third parties–, (iii) or that the established term will not be fulfilled, giving rise to eventual non-compliance, generation of cost overruns and patrimonial affectation of the State, it will be considered that the rules on which the mandatory nature of the planning principle is based are violated and, consequently, the declaration of absolute nullity of the state agreement, for an illicit purpose.Ítem El régimen del error como vicio de la voluntad en la legislación civil colombiana : algunas problemáticas y propuestas de solución(Universidad EAFIT, 2021) Correa Mejía, María Camila; Gaviria Gómez, Juan CarlosThis paper presents four of the main problems of the mistake regime in the Colombian legal system: the mistake in the determining motive (i); the mistake of law (ii); the inexcusable mistake (attributable) to the claimant (iii); the substantive mistake (iv). For each of these problems a dogmatic solution is proposed and the corresponding reform that could be made to the Civil Code regime (arts. 1509 et seq.). Regarding the determining motive, it is not expressly envisaged and there is a lack of clarity in its assumptions. It is proposed to specify its regime and assumptions, and to establish it as the genre that encompasses the other types of mistakes. In respect of the mistake of law, it is found that the current regulation (which considers it irrelevant) is not consistent with the legal reality of the country or with subsequent developments (nationally and internationally) on the subject. It is proposed to unify its regime with that of mistake of fact, with certain exceptions (e.g., excusability). With regard to the excusability of mistake, it is not expressly contemplated in the civil legislation despite its importance (but it is intuited from dispersed norms or legal principles of private law, without greater clarity). It is proposed to express the requirement for the generality of mistakes, and to take an additional step in the sense of contemplating the cases in which the "risk of mistake" is assumed. Finally, in relation to the substantive mistake, Art. 1510 of the Civil Code is criticized by several doctrinaires because it would turn its back on the general theory of the legal transaction, according to which there would be lack of consent and, therefore, non-existence. A regulation is proposed which, in order to solve this problem, would resort to the theory of the formation of consent, which would make it possible to differentiate the cases of substantive mistake in which there is a counter-offer (and therefore non-existence) from the cases in which there was a contract vitiated by relative nullity due to a mistake on the part of the addressee in the interpretation of the offer.