Is the order of the day the contractual simulation, By which, It is masked by an apparent business, another who really is the true.
The contractual simulation It is making a statement will not truthful, consciously and with agreement between the parties, in order to produce, by deception, the appearance that there is agreement that in reality is not real or that is different from what has actually been carried out.
Namely, a purpose other parts corresponding to propose
the typical cause business. It is a false statement will deal made with the recipient. On contractual simulation a concert to produce the appearance of a business that the parties do not want at all or they want it only as a means to disguise who actually want occurs.
Hence the doctrine sole distinguishing between absolute and relative simulation simulation.
On absolute simulation, the real intention is not enter into any business. It is a mere appearance of business, it is empty of real content. It is not intended to conceal other business that the parties wanted to celebrate but there is no meeting of the minds behind the business simulation. Apparently there, totally lacking in actual content. For example, the simulation of a loan to increase the liability of the debtor and frustrate the expectations of creditors.
To the Supreme Court (STS 3 November 2004)
"Occurs when the parties enter into an agreement with the purpose of creating an appearance of its existence, but unwilling to celebrate, so that the formal appearance does not correspond to the real situation. The appearance of a contract is created, but, truly, You do not want to be born and have legal life. "
On relative simulation, not all fiction, but parts, They appear to hold a business that really have no intention of making, to cover other which is what really pursue. It is an anomaly due course. A false cause is expressed when in fact the hidden dear contractual result is based on another real cause, sufficient and lawful (art. 1276 the C.Civil). There is an apparent business (Simulated business) to hide the true will of those involved in the act (sneaky business). In this manner, third parties in good faith only perceive the existence of "Simulated business", while for the "simulators", there is only "Sneaky business".
There are frequent examples of simulation on sales contracts that cover genuine donations, leases or services that hide real labor relations.
Within related simulations we can distinguish those in which the simulation only affects some element of the transaction: in simulated business or contained some clauses that hide what you really want are included. In these simulations relating no partial two specialties that they occur frequently. The purchase price and sham person filing.
• Sale with simulated price: Normally defraudatorios fiscal targets or to justify increases or decreases in equity, It indicated in simulated business prices, that really does not match the real.
• Figureheads: fictitiously stands a person who really is not the holder of the legal relationship. Usually to circumvent bans hiring or hide assets.
Effects of absolute simulation
In absolute simulation, the effect is simulated business that never existed. The parts can not be required to comply with the contract, and it is not necessary even a court ruling. In principle it would have to ignore the nonexistent business. Only in certain cases the judicial declaration shall be necessary to destroy the effects of Simulated business, as may be cancel a registration or recover any payment made.
Simulation effects on
Then, once discovered simulation, no longer presumes the existence or the legality or falls on the debtor the burden of proving its nonexistence (article 1277 C.Civil) but simulation demonstrated, it is presumed absolute and you must prove the existence of hidden business and your cause is true and lawful. (STS 29 December 2011).
Whoever wants to enforce the "hidden business" is who must prove they really existed.
Generally, in cases of contractual simulation, the biggest challenge is to get enough proof that the ends are to try, considering the existence mood concealment by the parties.