The prohibition of forfeiture clause in guarantee contracts. justification and scope.

Abstract

This paper reviews the different reasons that the doctrine and jurisprudence have adduced to justify the prohibition of the forfeiture clause and its scope in guarantee contracts and analyzes the adequacy of the justification based on the contractual cause, a criteria towards which some authors have recently leaned, and on which the jurisprudence seems to rely. The contractual cause as a criterion makes it possible to justify the legality of certain commercial transactions that are sometimes put into question, as is the case with leasing, and to determine the illegality of those indirect or simulated transactions that hide a forfeiture clause, as is the case with using a sale as a guarantee.