The project for updating the Spanish Civil Code
The Project for updating the Spanish Civil Code issued recently by the General Codification Committee of the Spanish Government would bring substantial changes in M&A transactions. Among other to be considered the Project regulates the following relevant concepts which directly attain to M&A transactions:
- The Project regulates as a novelty the unfair advantage for canceling the contract by the affected party in the case that the other party has taken advantage for the ignorance or lack of knowledge, less experience or lack of the proper prevision of the affected party.
- When the contract is agreed by error for the lack of enough information received by the purchaser allows the later to cancel the contract.
- The letter of intent acknowledged as soft letter, as a project for completing the purchase contract, is binding for the parties for negotiating the purchase contract in good faith. Only would be compulsory to complete the future contract if that is expressed in the document (hard letter) and could also include particular aspects for a binding completion.
- As a novelty the Project expressly regulates the right of claim for breach of confidential information. The damaged party will be entitled to claim for the damages suffered and the profits obtained for the party who breached the confidentiality.
- The Project develops rebus sic stantibus clause and allows to adapt the fulfilment of the contract in the case of substantial change of the circumstances, obliging to both parties to start negotiations for the proper adaptation of the contract.
- Completely new regulation of the infringement of the contract and the damages to be paid by the breaching party, including direct damages, both material and intangible, and the profits lost.
- And much more that exceeds of this brief comment, as for example eventual reduction of the price in the case that the fulfilment of the obligation would be different than the agreed by the parties, the acknowledgement of the debt or obligation between the creditor and the third party without the consent of the debtor, the transfer of credits, or the payment of the obligation by a third party.
The Project is very welcome and deserves positive opinion as far as it implies a substantial update of the Civil Code in obligations and contracting, with deep impact in private law, both civil and commercial law, particularly relevant for M&A transactions involving either Spanish companies, business or assets.