Summary

“Retention in Economic Contracts: A food for thought” was a study conducted in the Center Workshop Company and with it, we approach the General Objective: To propose the economic provisions of the legislation in force as underlying RETENTION compliance bargain between the parties.

First, we analyze aspects of doctrine, the legal rules and especially recognize the need for retention; tempering current legislation to the current demand and finally, presented the moments that passed the scientific work during the implementation period and methods that were used for the treatment of information that helped the development and implementation of the proposed solution, analyzing the experiences and experiences during that convinced us once again that the retention is a real guarantee in contractual business to be instituted in law.

Introduction

Cuba has taken important steps in the control of the contracts, so much so that just created the Ministry of Accounts, which have these as one of its main objectives. All this accumulation of changes and the continuing difficulties that are generated before the breach of contract actions were reason enough for this research and the idea of this thesis expertise, which part of the possibility of retention of goods contracts, considering the need for her to repair the damage caused to the creditor.

Of course we had the need for the employer in Cuba should be able to hire protected by a system of guarantees and rights not only bring with them a benefit to the creditor to see your debt paid off but the debtor educate the fulfillment of the agreement and therefore in the best development of contractual relations.

Grounds, we believe that the importance of our work lies in a proposal to amend economic legislation to Establish retention as collateral in these types of contracts and a clear and specific procedure for carrying out the retention of good, for this favors the interaction between the parties decide to establish the business, taking into account the guarantees. Which would give the creditor the possibility of demanding a right and restore the damage. This would encourage strengthening contractual relationships in order to guarantee the fulfillment of financial obligations and positively affect business efficiency.

In the present paper deals first, some terms are necessary to treat on the subject of contracts, then get the concept of retention, studying as described in the Civil Law and in the economic and ultimately, in practice Current Cuban and more specifically in the service providing entities, this study allowed us to see that Cuba is not exploited this possibility to enforce the obligations of contracts, particularly the one that will be treated at work.

Among other points of interest, we review current information on the practical ability to apply retention, which is only in the civil sphere, which is why we set the general objective of the research:

To propose the economic provisions of the legislation in force retention as collateral fulfillment of the bargain between the parties.

For a better understanding of the work is structured as follows:

Is a reflection of some aspects of the concept of Contract, then delves into the characteristics of the Retention, concluding with the problems that come with the insipid current possibility of it, making a settlement proposal.

Development

Retention, according to the doctrine is the “action to save or continue to possess a thing” (1), “is the ability to compete for some people to keep things in their possession or property of others that have and had to give to others, to which have been satisfied their claims or rights “(2).

The Spanish Civil Law has conceived the lien on several assumptions, including the following: the possessor in good faith until it was reimbursed for expenses necessary and useful, the beneficial owner at the end of the usufruct will not pay expenses extraordinary satisfied himself that they were indispensable to the preservation or survival of the well, which has implemented a work or repairs to a movable to recover the amount of work the agent to be reimbursed for expenses and damages, the depositary to collect what is credited with the deposit, and the pledgee as collateral for credit.Explained that the owner may retain the right to be fully paid and shall have precedence over any other creditor of the debtor, may defend the same thing held by exercising the injunctions and the right is considered to be transferable.

In this respect we should have as keywords the following: Warranties – lien – privileges.

Ensure it is said “to establish an effective legal mechanism to ensure the eventual breach of a duty or self-employment. Among these mechanisms, we find the lien” (3) and as a result Diez Picazo explained that the term security “is attributed to any means to ensure compliance with the obligation or the enjoyment of a right “(4). Thus, in essence, we can identify the term security as synonymous with security, confidence, protection.

Retention is often a real anomaly in the system of guarantees that fits poorly to other traditional nature, as the pledge or mortgage. (5) Furthermore, it is considered inappropriate in all cases where there is no legal provision or acknowledged and agreed that the parties have agreed by agreement. (6). Or is the law or are the parts, being forbidden to court so Praetorian create liens. The sources of the lien are the Civil Code or other special laws. It is an exhaustive list. There is, then, more cases of retention than those expressly covered by law. (7) The exception principle that pervades the lien of which may not be a thing of the debtor to retain a debt security without your consent, except where the law expressly designated. Hence, it is commonplace to assert the impossibility of extending the lien to situations where, although their conditions are met, it appears that an express grant. There would be no legitimacy to hold an alien thing a loan using as basis the executable on the owner of the property who, while claiming the refund.

There is a feeling suspicious about who takes justice into their own hands, holding the thing, without a law to enable it. The absence of a general recognition of the lien has not stopped legal systems similar to Chile’s move towards an application by analogy or, more daring, establishing a principle of restraint by the courts. This practice is based on an exercise judicial recognition of the essential conditions of detention.

This general principle of restraint would recognize the right to retain any creditor, it is sufficient to verify the conditions for its effectiveness, whether a statute to recognize or not explicitly. This way of viewing the lien would prevent unjust situations in which subjects in a similar situation are treated differently at the same time open the possibility of forcing the debtor who retained the thing to pay your debt.

As to the tenure of the thing and refund action, we must say that the doctrine coincides in large part to explain the conditions of detention. It explains the need for a ruling is that it guarantees the possession of the thing by the debtor that refuses to surrender a claim of restitution debtor to a creditor of it, being required a connection between the loan and the thing is retained. This set of conditions enables the retainer to defer delivery until the implementation of credit in its favor (8). There is significant homogeneity in the components. Now, the main condition is to understand that is verified, the retinente should be a thing of the debtor. In an eloquent phrase that usually means that “to hold the thing must have.” This condition sine qua non of the lien may be reviewed, also in two senses. As a result there are two important words in the requirement to have a thing. The verb have, which involves determining what should be and secondly, the thing, what might be capable of retention.

The first and fundamental consequence of the coding required to have lien to retain. If the creditor would lose the thing they hold a lien (9). It admits of no difficulty if the release is voluntary, thus it is terminated retention. Indeed, the lien holder to leave things in the hands of the debtor consents to the termination of the retention. This is generating a waiver of right of extinction. Yes, even the voluntary relinquishment of retention to deliver the thing does not mean the extinction of personal right or claim against the owner of the thing, except remission or forgiveness of debt.

The question is whether the subject of the lien holder, having lost possession of the thing, the extinction of his right in an irresistible way regardless of the circumstances in which the release occurred or, in contrast, the faculty would of that to require restitution by way of judicial action. (10)

The second aspect relating to the possession element of the thing, it refers to what might be the subject of retention ight. We might add that the assumptions do not always require retaining possession of the thing. This is true for leasing. The landlord to secure payment of rent and compensation for the lessee can retain all existing fruits of the thing leased, and all objects with which the lessee has furnished or supplied trimmed and that we belonged, and there is a legal presumption this regard. No doubt we are facing a particular situation. In effect, the landlord has nothing, except a lien on property that is not in his possession.

It is said that the essential condition for the retention of tenure would not be material, but the connection of the thing and the right or claim involved. It is proposed at once embrace the right not only tangible goods, but also on intangible assets. In his view, retaining the essence would be able to lock the retainer, rather than the possession of the thing. It is a bold opinion that breaks with the tradition of one of the shared conditions of the institution. (11). However, although the retention response to human nature as a primitive mechanism of coercion for the fulfillment of obligations, this right over intangible property and would be a purely legal construct. These arguments, in principle, should justify the rejection of the extension of withholding tax on intangible property. Indeed, this position, in my opinion, goes too far, by distorting the retention of its most atavistic human, material retention of the thing. So the condition for exercising the right of retention is that it is a movable or immovable corporeal thing. There is a clear materiality needed to exercise this right. This condition has been established from the assumptions to be found scattered in the said lien. So, then, was written with rigor the need for a physical thing.

For a satisfactory guarantee to be effective. The lien is assigned to this attribute to be left to manage the security of the creditor with the retention of the thing. However, scattered and confused certain aspects of its legal system will remain effective.

The following will limit certain aspects of the effects of the lien and exercise:

a) The effects of the lien.

A first aspect that allows the lien truly effective is its enforceability erga omnes. While some doubts were raised about the enforceability in the event of transfer to a third party thing, there is now consensus that the third party must comply with the lien, may recover the thing only in the event to pay outstanding credit (12) . Some attenuation is verified in the case of real rights over the thing made prior to the credit of which the holder the right prevails to hold the thing. In this case the property right should prevail up earlier.

An important aspect of retention in terms of its effects is to elucidate the power of accomplishment and privilege granted by this kind of guarantee. However, the retention, of course, does not prevent the creditor to exercise its right retainer general pledge to finish the thing, not under detention, but his right to credit.

b) The right of retention.

It should be emphasized that the lien must meet in their exercise under certain conditions. There can be a source of enrichment, can not contradict the good faith (13). In other words, the retainer is prevented from making a profit from the retention or realization of the thing. That’s why a ruling said that the thing produces fruits that belong to the owner of it and not the retainer. (14). In this case the rejection of the enrichment at the expense of another without a valid reason for preventing a benefit that exceeds the credit retainer that holds against the owner of the property.

Nor can abuse retaining lien in the principles of good faith. Although here we enter a diffuse field is generally given to the judicial discretion under certain guidelines developed by the doctrine and jurisprudence. Like any law, the holder can not exercise it contrary to a standard of conduct required of a contracting rational. Indeed, they are known manifestations of the principle of good faith that by now has become the “principle of principles” to justify behavior guidelines contractors throughout the contract iter. For specific assumptions lien can be argued that good faith to prevent a subject of law to retain a thing whose value significantly exceeds the claim against the owner.

The aim of this section is to present the major controversies about the lien understood as a primitive security that has not been given more attention. However, the reform of French law on guarantees and Colombian jurisprudence from a code similar to ours have made progress in providing greater effectiveness in this school. This purpose of advancing greater efficiency requires, in my opinion, to establish through legislation a general recognition of the lien. This will avoid a fragmented and dispersed application of lien.

Second, the lien must be covered by a refund action for loss of the hands of the retainer thing against his will. This right should also have a legal consecration. Regardless of the legal status be granted the right to hold their legal system should provide for such act of persecution. This legal reform would prevent abuses of the spoils retainer via the good.

The primary legal regime lien has as its corollary the limits set by the principle which forbids the enrichment at the expense of another and that of good faith. The exercise of the lien can not mean an enrichment for the retainer being subject to the achievement of good credit limit held by the retainer. For its part, the good faith prevents abuse lien retainer being subject to performance standards of a normal subject and loyal.

No doubt the warranty has suffered recently attracted increasing attention in various legal systems.

In the Civil Code which regulates Cuban is regarding the retention and in Title II of the contractual obligations. If an exhaustive analysis of each of the civil contracts in this title shall be collected we will realize that in CHAPTER IV SPECIAL PROVISIONS FOR CONTRACTS REQUIRE THAT THE SERVICE DELIVERY OF AN OBJECT, in SECTION ONE General Provisions in its Article 331, paragraph 1. And this is where we have doubts by not clearly established in law a procedure for carrying out the retention of good. In Part VIII concerning the Loan agreement, in Chapter V on the Prohibition of retention is alluded to in section 388, also in the TITLE XII DEPOSIT, Article 428 and finally, in Title XV of lodging, in CHAPTER III RIGHTS AND OBLIGATIONS OF THE COMPANY, ARTICLE 442.

From this we can deduce that if the civil law foresees the lien, but in a very shallow along these four items the encoder regulates this figure setting, briefly, the situations that the system can be presented in the right . One need not be so deep to find that our code does not pray the concept of retention and are the criteria that the regulatory text should arise literally, that the debt must be due to “the same thing”, since we have the thing and a debt that is generated by the intervention of a third on the same thing. And is that in any way, remember that in substance, the lien on the thing is, this form establishes or creates the property right restriction of such magnitude that, if fully passed less full as the While no longer a guarantee of first order, in addition to whether the owner intends to alienate the thing is bound to respect the exercise that the law gives the retainer.

But even as the Civil Code is supplementary to other substantive laws, the fact is that it is undisputed that the lien is only reserved for civil contracts.

We are the criteria that is very important to an urgent amendment of a general contractual relations in the economic sphere in Cuba, in order to avoid dissimilar practical problems which are evident in the everyday. The coexistence of three basic pieces of legislation authorizing the procurement (Decree Law 15/78, the Commercial Code and Civil Code in its supplementary nature) is an example of the profusion legislation in this area and no doubt as to which complicates provision is applicable to a given legal relationship. Except for extreme cases that cast doubt on this particular, most cases present a great number of light-dark arising from the very limitations of each of these policy instruments. At least formally, is given prominence to the basic rules of economic contracts, which are required updating in light of the significant changes in the state enterprise system, as well as private, mixed and co-operative economy, expanding its standards with the encouragement and support of the Civil Code as a supplementary given matrix, and reserved for those cases of pre-eminence of the will of the parties entering into other contracts existing under the Commercial Code, thereby limiting mainly the area of procurement of transportation and insurance.

In our case, this process should not only pay taxes for this purpose, but to regulate a number of leading institutions of the general theory of contracts that allow traders to have a regulatory body full applicability and effectiveness.

Unquestionably, the economic decisions taken in our country and reflect swings towards centralization or decentralization will directly affect the figure of the contracts in an inverse correlation or directly proportional to the autonomy of freedom respectively.

Moreover, in a culture to be gaining contract will be qualitatively better by making contracts that reflect the interests of the parties and have not unduly onerous terms for the contractor weaker economic or intellectual. ” The role of legal advisers will be vital in this endeavor.

But if we conclude with our specific issue is important to note the real possibility of retaining their obligations under financial contracts as set out in the substantive civil law. In this regard, we agree with the Master Insua that “Civil Code provisions are supplementary application under the provisions of its first final provision of correct interpretation of which can be said that regardless of the economic contract shall be governed in essential to specific legislation, nothing prevents the supplemental application of substantive civil law, in what regards collateral, hence they suffer our economic legislation of a system of guarantees of the obligations fully developed, is open to the Cuban businessman the possibility of developing certain guarantees provided for in the civil code or develop other figures are not regulated by positive law in terms of security “(15), such as retention, is necessary to create the legal possibility of it taking into account the express prohibition of Section 138.3 of the Civil Code, under which the assets of state assets may not be offered as collateral, unless the law excuse him and in accordance with the provisions of Article 17 of the Constitution of the Republic of Cuba, state enterprises and other entities accountable for their obligations only to their financial resources, and we believe that in this case the use of retention should be authorized only by specific legislation.

It is worth mentioning that is a real problem with regard to responsibility, and that Decree Law 15 is ignored in this aspect, since one hand does not provide in its articles, the content, scope and impact of the terms, damages contained in Article 37 on:

– Repair the damage caused,

– Compensation for damages caused,

“The financial penalty established in the general or specific.

For all this we believe that it is evident that this term transpolar economic recruitment are acting outside the law, and so raised, meaning that even if it would agree in advance the practice of retention by the creditor liable for breach of the truth is that no provision has been uniformly and legal for a procedure that establishes different stages, which we think might be:

* Acts prior to the retention.

* Initiation of Retention.

* Communications should be attended once held the thing.

* Return of the thing and the corresponding payment.

* Ability to agree in advance the retention of the thing.

* Removal of retention.

* Accumulation Benefit retain the thing with another or with certain priorities or legally privileged.

* Transfer to third successors retention of the original holder of retention.

These aspects to be included in legislation and be properly depth and analyzed by the legislature.

The economic changes undertaken in our country since the nineties, conditioned a new environment in which recruitment takes place. In this new economic environment, in the configuration process, the economic contract has become an indispensable tool in the management of economic relations in the financial categories that are gaining more weight.

From the above we can conclude, that it is right time now to give our country’s entrepreneurs the opportunity to benefit from the ability to fulfill their contracts and maintain a favorable position in the market developing in the economic retention, with In order to ensure contractual compliance as an alternative duly agreed and based on law, with the expectation of strongly pro today and tomorrow, the efficiency of the Cuban economy and prestige of Cuba in the world market and that is why We wanted to conclude this chapter remembering something that I had the opportunity to read once:

“This is more real than the past or the future, because, although the amount of content is vastly inferior to that of those, has coordinated this element of immediacy that no other completely. The past seems to be more real than the future, because its content is more fully present, while the future can only claim a superiority to the past, it can be shown that in him, the appearance may have to do ever more with reality. ”

G. E. Moore, Ethical Essays, 1897.

Conclusions

* The economic recruitment regulation is requiring changes to their own set of economic practice transformations given in our country and the Decree-Law 15/78 is currently obsolete, hence the need that exists for many precepts amendment that have been deprecated, as regards the responsibility of the entities in cases of breaches of contracts.

* There are factors that affect compliance with the requirement of contractual act through retention, and these are: speed in contract performance, gaps in provision and economic conditions unfavorable to the entity providing services.

* The retention has remained rooted in the exception and renew the institution for more effective means moving in two directions: formulating a general principle of restraint and the other, establish a procedure for the disposal of the property.

Recommendations

First: That clears the possibility of creating a project on the economic contract that allows the unification of the regulation of recruitment in our country and that fit the relevant legislation to the realities.

Second, retention should be used for greater effectiveness on the one hand, formulate a general principle of this, and other legal proceedings to dispose of the property.

A Legal Advisors:

ONLY: That from this study encourage the use of restraint in the economic obligations to obtain a deeper understanding of the retention in the economy for the purpose of developing it as an alternative compliance assurance function and thus promote its ability to meet, leading the Cuban businessman encourages the use of guarantees of the obligations in the financial recruitment.

References

* Legal Encyclopedia. Page 446.

* Legal Encyclopedia. Page 104.

* Legal Encyclopedia. Page 346.

* Diez Picazo, Fundamentals of rights. Madrid 1991, Volume II, p. 395.

* Civil Procedure Code of Chile, March 21, 1944.

* Supreme Court, April 23, 2007, No. 36 236 ID Legal Publishing.

* Biermann Caprile, Bruno, The law of pledges reform in France: perspectives for an evolution in Chile “, .2003, pag.68 et seq.

* Tellez Calderon, Arturo, Lien, Talleres Graficos, Santiago, 1926, p. 35 et seq.

* Laneri Fueyo, Fernando, Compliance and breach of obligations, Legal, Santiago, 1991

* Cifuentes de Castro, cit., P. 59.

* Aynes, Le droit, cit., P. 22 et seq.

* Castro Cifuentes, the lien, p. 67.

* Castro Cifuentes, the lien, cit, p. 92.

* Failures of the Month, No. 448, Case No. 11, p. 401, cited by Abeliuk, obligations, cit. n. 10, p. 858.

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