When two or more people decide to enter into a contract, what precedes its execution is known as the pre-contractual period. That is, the phase prior to signing a contract, where interested parties initiate conversations, negotiations, or expressions of interest (such as offers, invitations, or product presentations).
At this stage, it is important to seek advice from lawyers specializing in the subject matter of the contract, such as labor lawyers or commercial lawyers. This is because this period is when the parties approach each other, leading to situations such as offers, invitations, or the presentation of products to the public.
Regulatory Framework
Institutions such as the offer and the acceptance thereof, although not contracts per se, are regulated in the commercial code, in articles 845 and following.
Although Article 1603 of the Civil Code states that all contracts must be executed in good faith, the Commercial Code redefines this duty and extends it to the pre-contractual period. In this regard, Article 863 of the Commercial Code indicates that parties must act in good faith, free from fault, from the pre-contractual stage, under penalty of compensating for any damages caused.
What is good faith?
In this sense, good faith is a duty to behave, which in the pre-contractual stage implicitly carries other duties such as seriousness and the duty to inform, that is, to speak clearly and provide information about the circumstances of the object.
The regulation of good faith in the pre-contractual stage has led to the emergence of a new theory of civil liability in the pre-contractual stage. The Supreme Court of Justice, based on Article 863 of the Commercial Code, has developed liability for negative interest or reliance (liability in preliminary dealings).
Examples of good faith between partners
Before forming the company (pre-contractual phase)
- Disclose relevant information: do not conceal financial background, lawsuits, or disqualifications that could affect the company.
- Transparent negotiations: do not take advantage of a partner with less legal or accounting knowledge.
Principle of good faith in labor law
By the employer:
Transparent selection process: do not conceal important working conditions (actual salary, schedule, duties, job risks).
By the employee:
Sincerity in sick leave or permits: do not present false excuses or fraudulent medical certificates.
Legal consequences of acting in bad faith
Thus, when the duty of good faith and its consequent duties are breached, damages caused as a result of such breach must be compensated. The source of this pre-contractual liability is Articles 863 and 871 of the Commercial Code, which stipulate that contracts must be executed and entered into in good faith.
Whenever you need to draft a contract, remember that you can seek advice from the best labor lawyers in Medellín. We have commercial lawyers in Medellín and Bogotá, and all legal specialties.
