The principle of contract preservation

In a globalized world, where international electronic trading and new technologies are becoming the norm over the exception in contract signing, the proliferation of services alike eBay, paypal, twitchtv,  even video games and their online purchase shopts have raised awareness to national and supranational legal systems pursuing a swift in legislation capable of coping with the fast-paced and enormous legal traffic in this context. As a consequence, case law has started to build new doctrine which instead of focusing on voiding or declaring nulity over irregular contracts, are softening and adapting such in order to preserve the contract's core obligations in order to facilitate and improve such legal traffic.

However, that being said, the ineffectiveness of legal transactions are one of the most confusing concepts of private law, as in addition to the doctrine, case law and substantive law have used imprecisely terms of voidable, absence, annullability, invalidity, annulment, termination and resolution of contracts. That being said, it is hardly impossible to build an homogeneous approach to this matter when comparing two different legal systems.

The main effect of nullity is the total lack of effecst of the contract and per se of all the obligations subscribed therein- nullum est quod nullum efectum producit-. In such scenario, once the contract has been declared null, despite complying with the obligations included therein in the mean time, it will be necessary to undo what has been done and proceed to the refund of benefits to both parties. A priori, it is not even required that the contract is declared null by a judge, since it has never existed.

As regards to the annullability, it is an imperfection which does not automatically mean the contract disappears or that it has never existed. The causes and effects are discussed here. What matters is that the voidable contract is effective as long as their disability is not declared by a judge, meaning its obligations had to be undergone and there is no retroactive effect here.

In this sense, it is much more than relevant and useful the effort done by many jurists of different nationalities to have developed uniform standards as relevant as the Vienna Convention on the International Sale of Goods and UNIDROIT, amongst othhers judicial texts which allows maximum support of the principle of contract preservation.