358 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
358
therefore often failed to fulfill their mission or deliver on their promise.
These fundamental differences notwithstanding, a considerable degree of
transatlantic coherence has survived.
43
IV. Contractual Intent and Third-Party Agreements:
Peruvian and Latin American Perspectives
A. Overview
This Part will analyze how, in Peru and other civil-law jurisdictions,
particularly within Latin America, the intent of the contracting parties
bears upon the interpretation of a contract, in relation to the text. It
will also consider whether third-party agreements call for the application
of the same exegetical principles. The discussion will conclude that
they generally do and that they specifically escape the restriction on
contractual extra-party effects, creating an enforceable right for the
beneficiary. In these areas, the civil-law tradition shows considerable
cohesion and the code continues to play a central role.
B. Intent of the Contractual Parties
At least since the nineteenth century, the civil-law tradition has, more
openly than its common-law counterpart, invited courts to focus on the
intent of the parties over and above the ultimately executed contractual text.
Of course, throughout the twentieth century, it moved toward imposing
social considerations to trump the intent of the parties. For example,
Continental European and Latin American jurisdictions started disallowing
an oppressive labor contract, even if the signatories had clearly agreed to it.
44
Nonetheless, if no such public interest restriction applies, what the parties
intend carries the day, sometimes even over what they write in.
Latin American civil codes, true to their civil-law roots, ordinarily
mandate reading a contract through the parties’ joint intent. They treat the
underlying written instrument as both primary evidence of and subservient
to the latter. The Civil Code of Paraguay, providing a stark case in point
43
See, e.g.
, Parts IV & V
infra
(demonstrating convergence on contractual interpretation and on the approach to
ex post
facto
laws and punitive damages).
44
See, e.g
., L.
F
ed
. T
bjo
. (Mex.) (1970), art. 5 (“. . . no producirá efecto legal, . . . , sea escrita o verbal, la estipulación
que establezca . . . (II) Una jornada mayor que la permitida por esta Ley; . . . (V) Un salario inferior al mínimo; . . .”) (“. .
. agreements, whether written or oral, establishing the following shall have no legal effect . . . : (II) a workday longer than
this Act allows; . . . (V) a salary lower than the minimum wage. . . .”).