Las potestades excepcionales del estado contratante: cambio de paradigma en las reglas negociales.

Abstract

The purpose of this article is to make a conceptual and jurisprudential approach on the exceptional powers available to the contracting state and its relationship with the breach in contractual equality that is predicated of any business relationship.

Understanding this concept carries an enormous challenge, given the evident rupture that occurs in the classical theory of legal business, in which the parties generally have equality when establishing contractual conditions both in the precontractual phase as well as in the execution and settlement of these. The exceptional powers legitimize the contracting state to make unilateral decisions, legally endorsed, which can lead to the modification, termination or unilateral interpretation of the contractual agreement, or in the worst case, legitimize it to declare the expiration of the contract with the serious conditions that said declaration represents for the contractor.

Notwithstanding the foregoing, the exercise of said power cannot be arbitrary, the current regulation by legal and jurisprudential mandate establishes limits to the exercise of said powers that must always maintain a correspondence with the safeguarding of the general interest, because although it seems that the State is entitled to take on its own the reins and destiny of the legal business, the truth is that its exorbitant capacity is limited and circumscribed to some very specific cases that will be addressed throughout the writing.

In pursuit of the foregoing, i.) The concept of exceptional power in Colombian law, ii.) The types of exceptional powers existing in our legal system will be established and, iii) conlusions.