PACTA SUNT SERVANDA WHAT DOES IT MEAN? EXCEPTIONS - ARTE - 2025

Pacta sunt servanda means that the agreements must be kept. It is a Latin term that has influenced international law by establishing that international treaties must be respected by all parties. The principle of pacta sunt servanda is based on the principle of good faith.

It is good faith that explains how a party to a treaty cannot invoke the provisions of its national law to justify non-compliance with the treaty. The only limit to the pacta sunt servanda principle is the peremptory norms of general international law known as jus cogens, which means convincing law.

Initially, in Roman times, only contracts were binding; they considered that the pacts had less force and that they only emanate from the same natural obligations, but in no way civil actions. This completely changed with the concept with the pacta sunt servanda in Byzantine law.

How does it affect civil law?

In the field of civil law, this principle is related to the general principle that advocates correct behavior within business practices, including assumption in good faith.

Civil law has its pillars well established in the force of contracts. Consequently, the principle of pacta sunt servanda is a requirement for the effectiveness of the entire contractual system.

For this reason, its non-application is even punished by the law of some legal systems. This happens even without a direct penalty incurred by either party.

The matter is a bit different in common law legal systems, which do not usually include the principle of good faith in their commercial contracts. Therefore, in common law legal systems, it is incorrect to state that the pacta sunt servanda principle includes the principle of good faith.

Origin of the binding nature of contracts

The civil code establishes the obligation to fulfill contracts from different aspects:

-A parallel is established between contracts and the law to see that both create coercive precepts.

-The basis of its obligation is the will of the parties under the protection of the law.

-Its obligation is extended to the consequences that, although not contemplated, originate in the contract (article 1258 of the Civil Code).

-It is impossible to subject the validity and fulfillment of the contract itself to the will of one of the parties (article 1256 of the Civil Code).

Exceptions

There are exceptions to the irrevocability of the contract, such as those contemplated by the Civil Code; for example, the revocation of a donation due to the ingratitude of the beneficiary children, or the end of the mandate contract due to revocation of the principal or resignation of the agent.

In addition, the doctrine has questioned a lot about the appropriateness of reviewing and changing clauses of contracts with periodic services that may be onerous for one of the contracting parties due to circumstances that occur once the contract is concluded.

How does it affect international law?

International law can best observe the principle of pacta sunt servanda. The principle states that commitments arising from a ratified bilateral or multilateral treaty that have entered into force must be honored.

It is so significant that it underlies the entire system of treaty-based relations between sovereign states. For years, States have recognized the importance of the pacta sunt servanda as a principle or norm of international law.

Originally it was an uncoded rule based on customary practice. It began to be put into writing in the mid-19th and early 20th centuries through multilateral declarations, such as the London Declaration of 1871 and the decisions of international arbitration bodies.

Apareció por primera vez como un instrumento legal internacional en la Convención de Viena sobre el Derecho de los Tratados de 1969 (CVDT).

La buena fe a la que hace referencia este principio supone que los Estados tienen que hacer lo necesario para cumplir con el objeto y el propósito del tratado. Esto implica que los Estados no pueden invocar las restricciones impuestas por su legislación nacional como una razón legítima para no cumplir con sus obligaciones derivadas de tratados.

Exceptions

En el momento en el que se ratifica un tratado internacional todas las partes participantes adquieren derechos y obligaciones precisos que tienen que ser contemplados. Es un principio que tiene valor consuetudinario con base en sus múltiples precedentes, que hacen que la obligatoriedad de los tratados sea actualmente una costumbre internacional.

However, there are exceptions to this principle that should be examined to better understand the concept of the pacta sunt servanda:

Not physically possible

According to the aforementioned Vienna Convention, one of the participants in the treaty can argue that it is not possible to fulfill it because the object of the treaty is no longer physically or does not exist.

It must be established whether this impossibility is temporary or permanent, since if the impossibility is temporary, compliance can only be delayed in time and not canceled.

Rebus sic stantibus

Compliance with a treaty is not mandatory when some historical or political circumstances change. Article 56 of the Vienna Code of Treaty Rights reads as follows:

Denunciation or withdrawal in the event that the treaty does not contain provisions on termination, denunciation or withdrawal.

1- A treaty that does not contain provisions on its termination or provides for the denunciation or withdrawal thereof, may not be the object of denunciation or withdrawal unless:

a) It is established that it was the intention of the parties to admit the possibility of complaint or withdrawal.

b) that the right of denunciation or withdrawal may be inferred from the nature of the treaty.

2- A party must notify at least twelve months in advance of its intention to denounce a treaty or to withdraw from it in accordance with paragraph 1 ″.

Excessive load

It occurs when going ahead with the treaty puts the continuity of the State at risk. What happens is that it is possible to fulfill the treaty physically, but it is not morally.

References

1. US Legal. Steven Reihold. Pacta sunt servanda law and legal definition. Definitions.uslegal.com.
2. Good faith international law. Pacta sunt servanda. Discovery.ucl.ac.uk
3. International Judicial Monitor. Andrew Solomon (2008). Pacta sunt servanda. Judicialmonitor.org
4. Duhaimes's law. Pacta sunt servanda definition. duhaime.org
5. Wikipedia. Pacta sunt servanda.