VICES OF CONSENT

I-INTRODUCTION

The will being one of the essential elements of the legal business, which must be freely and consciously formed, when its formation has been affected by factors external to the subject or when, despite being correctly formed, it is transmitted or declared in such a way that the result final causes a discrepancy between the will itself and the declaration, it is stated that the will is flawed.

Within the cases of discrepancy between will and declaration, it is worth highlighting :

-a-Statements of will that lack seriousness or "jocandi causa"-These are cases in which the declarant voluntarily issues his declaration, but without a serious will to be bound, assuming that this will be noticed by the recipient. In such cases, the declaration of will is deprived of any effect and will not bind you, although, in cases in which the counterparty has been able to lawfully rely on its existence, the obligation to compensate for the damages caused to it can be attached to it. irrogated the well-founded belief that he was going to hire.

-b-Mental reservation-Supposes that the declarant issues a declaration of will that he does not want internally or with effects restricted to those that are his own. Based on the principles of protection of trust, traffic safety and good faith, the declarant - unless the counterparty knows of the reservation - is bound by his expressed will towards third parties and therefore, the mental reservation does not have any relevance. The issue, which is clear in property matters, is discussed in relation to marriage, arguing that mental reservation in one of the parties entails its nullity due to the absence of reciprocal provision of marital consent.

-c-The Simulation-The real or underlying will may consist of not entering into any business, or in entering into a business other than the one apparently carried out.

According to this, two simulation assumptions are distinguished :

-a-Absolute-We speak of absolute simulation to indicate that the appearance of a business is simply a fiction, and does not respond to any true negotiating intention of the parties in bilateral businesses. On the contrary, those cases in which the business fiction tries to cover up another truly celebrated deal and which, for different reasons, are intended to be kept hidden, are classified as relative simulation. In this case it is necessary to distinguish between the apparent or fictitious business (simulated business) and the truly concluded legal transaction, which is designated by the name of disguised business. It should be maintained that the simulated business (typical of absolute simulation) and the disguised business in the case of relative simulation must be considered valid vis-à-vis third parties. Between the parties, in the case of absolute simulation, the simulated business must be considered non-existent.

-b-Relative-In the case of relative simulation, the simulated business would be void and the disguised or hidden business would be valid.

-w-In marriage, the simulation will always be absolute and the simulated marriage is, consequently, radically null and void due to lack of consent.

The case with the greatest incidence in the field of simulated marriage fraud is that of the so-called "white marriages" or complacency, in which one of the spouses is a foreigner, and insofar as they imply a simulation of marital intention since it is considered that The true purpose pursued by celebrating these marriages is to facilitate entry and residence in Spain. or the acquisition of Spanish nationality by reason of marriage

According to classical teaching, the vices of the will are :

-a-The error.

-b-Violence.

-c-Intimidation.

-d-And the guilty mind (Mens rea).

Our Civil Code considers them fundamentally based on contracts, but they will also have to be considered with respect to the category of legal business.

   The Spanish Civil Code provides that :

"Consent given due to error, violence, intimidation or fraud will be void."

It should be noted that the admission of these causes is made in jurisprudence with great caution and in an exceptional manner and requires those who invoke them to prove them.

II-THE ERROR

For the error to be relevant, it must affect an essential element of the business and must not be attributable to the person suffering from it.

III-VIOLENCE AND INTIMIDATION

This will occur in all cases of absolute physical violence in which the will of the person making the statement is replaced by that of the violent agent, as well as in cases of psychological coercion.

IV-THE GUILTY MIND (Mens rea)

When, with insidious words or machinations on the part of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have made.