365 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
365
By the same token, the parties do not have to rely on a particular
formulation, much less inscribe the instrument with the phrase “third-party
contract.” They solely have to intend to grant the third party the entitlement
or the advantage at stake. Once again, an adjudicator may discern such
intent from the face of the ultimately undersigned document or from the
underlying circumstances.
In a nutshell, ordinary interpretation principles, which privilege
the parties’ intent, apply when determining whom the contract benefits or
entitles and how or to what exactly. The Civil Code in Peru and elsewhere in
the civil-law realm authorizes third-party agreements, exempting them from
the fallback principle that restricts contractual effects to the contracting
parties. The third party attains his or her right directly and immediately
upon execution of the relevant instrument and may vindicate it by notifying
the parties, whether explicitly or implicitly, at any time. Freedom of contract,
as well as the statutory sanction, empowers people both to enter into such
an arrangement and to configure it, to a considerable degree, as they see fit.
D. Recapitulation
First, Latin American law, as part of its civil-law heritage, usually
requires reading a contract on the basis of the parties’ common intention.
It commands enforcing the latter, when plainly demonstrable, even if at
odds with the ultimately undersigned document. Along parallel lines, the
Peruvian legal system necessitates disregarding the contractual wording
upon proof of a contrary intent. Throughout the region, courts must
interpret a contract to mean A if they ascertain that the parties intended
this meaning. They must do so whether the text says A or B and, of course,
when it allows either interpretation.
Secondly, these exegetical principles, which privilege the parties’
intent, apply when determining whom the contract benefits or entitles
and how or to what exactly. The Civil Code in Peru and elsewhere in the
civil-law realm authorizes third-party agreements, exempting them from the
default norm that restricts contractual effects to the contracting parties. The
third party acquires a right directly and immediately upon execution of the
relevant instrument and may vindicate it by notifying the parties, whether
explicitly or implicitly, at any time. Freedom of contract, as well as the
statutory sanction, empowers people both to enter into such an arrangement
and to configure it, to a considerable degree, as they see fit.