La naturaleza jurídica de la teoría de la imprevisión y su aplicación en la contratación pública colombiana

Abstract

In the theory of contemporary contracts, the reciprocity between the parties is relevant, that is, the equilibrium that the contracting parties have, for this reason it is relevant to analyze the different ways in which this balance may be affected. Therefore, this paper takes as a starting point the theory of contractual unpredictability, for this reason, the research problem to be solved is, what has been the historical evolution and what characteristics and peculiarities does the theory of unpredictability have in News? For this reason, the main objective of this work is to analyze historically a phenomenon that is present both in public and private procurement, with the purpose of achieving a reconstruction of the same that allows achieving a greater understanding and that in turn, facilitates the Analysis that will be done on it. Thus, the hypothesis that will be had in this work is that the historical evolution of the theory of unpredictability reflects a tension that does not seem to have an end in the law as it is between the substance and the procedure. Also, the methodology used is that of historical research.

For several decades, Colombian legislation and jurisprudence have dealt with clashes of legal principles, in the application of the contractual laws of the private regime to the contractual activities of the Administration. Indeed, the tension between the principles pacta sunt servanda and rebus sic stantibus in state contracts, highlighted the difficulties generated by preaching the obligatory force of the contract by demanding compliance with the obligations, taking into account that the conditions existing at the time of its convention had been substantially altered. In this context, the Theory of the Contractual Unpredictability (Hardship) was born as a response to that tension, and as a tool to conjure the effects of the breach of the economic balance of the contract. However, the question that arises, and that constitutes the research question of this chapter, is what criteria have been observed by the Colombian legal system for the application of the theory of contractual unpredictability (Hardship), in the contractual controversies that involve the Administration? With the purpose of answering that question, this chapter will present the main normative and factual features that constitute the theory of unpredictability based on a historical, doctrinal and jurisprudential analysis. Thus, the hypothesis of this chapter is that, beyond the unpredictability of the fact, the absence of imputability to the contractual parties, as well as the subsequent destabilizing event of the contractual balance, there are additional requirements that hinder the use of this theory, especially in cases known to administrative contentious courts.